Respectfully, You Lose: Masterpiece Cakeshop gets cited in state court

“Oh baby refrain from breaking my heart”

     In what appears to be the first judicial opinion to cite the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, an Arizona appeals court has rejected a claim by a hand-painted and hand-lettered stationery business and its Christian owners for a religious exemption from Phoenix’s law forbidding sexual orientation discrimination.  Decided three days after Masterpiece Cakeshop, Brush & Nib Studio v City of Phoenix rejected the Arizona state constitutional and statutory free speech and religion claims brought by the same Christian right advocacy organization – the Alliance Defending Freedom (“ADF”) – that represented the Masterpiece Cakeshop.  This time, however, there was not even colorable hostility toward the plaintiff owners’ religion, and ADF and the plaintiffs lost.

     The plaintiff business and owners had filed a preemptive suit seeking a declaration that it would violate their free speech and religious rights under the Arizona Constitution and the Arizona Free Exercise of Religion Act (“FERA,” parallel to the federal Religious Freedom Restoration Act or “RFRA”) if Phoenix applied its public accommodations nondiscrimination law to require them to custom-make merchandise for any same-sex wedding. The appeals court in Brush & Nib rejected each of their arguments.* It noted that the plaintiffs did not expressly argue that Phoenix’s law would violate the Free Exercise Clause of U.S. Constitution, but the court pointedly observed – citing Justice Kennedy’s majority opinion in Masterpiece Cakeshop – that the obligation under that clause was not to act with anti-religious hostility, which it concluded Phoenix had not done: “There is no evidence in the record to support any suggestion that Phoenix’s adoption of [the city’s public accommodations provision], or its interpretation as it relates to Brush & Nib, has been anything other than neutral toward and respectful of their sincerely-expressed religious beliefs.” (This is unsurprising: This was a suit in advance of any enforcement action due to rejection of a client, unlike the facts in Masterpiece Cakeshop.) The Arizona court went on to agree with Justice Kagan’s Masterpiece concurrence that “‘a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait.’”

     As “background” to its analysis of each of the plaintiffs’ claims, the Brush & Nib court quoted the Masterpiece Cakeshop opinion at length.  In particular, it included Justice Kennedy’s pronouncement that “it is a general rule that [religious and philosophical] objections [to same-sex couples’ marrying] do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law[,]” as well as Kennedy’s supporting citation to Newman v. Piggy Park Enterprises (1968), where the U.S. Supreme Court had rejected a business owner’s claim that the First Amendment exempted him from a law against racial discrimination because of his religious beliefs.  Later, in rejecting the plaintiffs’ free expression claim, the Arizona court insisted that “allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result in ‘a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations’” (again quoting Justice Kennedy’s Masterpiece Cakeshop opinion).  And in rejecting the plaintiffs’ free speech argument challenging the part of Phoenix’s public accommodations law specifically banning businesses from advertising or displaying signage indicating their intent to engage in discrimination forbidden by that law, the court quoted and characterized Masterpiece Cakeshop as “disapproving of [a] baker or other businesses posting signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ observing such would ‘impose a serious stigma on gay persons.’”

     The Arizona court took the U.S. Supreme Court at its word, applying the holding of Masterpiece Cakeshop and following its statements about the legitimacy and importance of laws forbidding sexual orientation discrimination.  (And it did so even in a case decided under state law, in part because it relied on federal constitutional law as a guide to some of its state law interpretations.)  May other courts follow its lead.


* The court did hold unconstitutionally vague a portion of the Phoenix law barring signs or communications indicating that a person “would be unwelcome, objectionable, unacceptable, undesirable or not solicited” on one of the forbidden grounds of discrimination, but it upheld the sufficiently powerful ban on ads or communications “stat[ing] or impl[ying] that any facility or service shall be refused or restricted because of” one of the forbidden grounds.

[Edited June 8, 2018 to add footnote]

Equal Is Equal* (*some exceptions may apply): Marriage Equality in Texas and Pidgeon v. Turner

“Found alternative sides to the things that were said”

Acting in Pidgeon v. Turner (HT @JoeDunman for the opinion copy), the Supreme Court of Texas (SCOTX) has gratuitously protracted the efforts of the city of Houston to treat its lesbian, gay, and bisexual employees constitutionally and hence equally. The court unanimously reversed a lower appeals court’s order allowing Houston to pay equal benefits to married employees whether they are in same-sex couples or different-sex couples. SCOTX then sent the case back down to the trial court for pointless proceedings that can only have one possible outcome under current U.S. Supreme Court precedent – affirmation of Houston’s practice and rejection of the claim that it was unlawful.

The background of the Pidgeon case goes back to the Supreme Court of the United States (SCOTUS) and its first marriage equality holding. On June 26, 2013, SCOTUS decided Windsor v. United States. Windsor held that the heart of the so-called Defense of Marriage Act (DOMA), which denied federal recognition of lawfully state-licensed marriages of same-sex couples, violated constitutional equality principles. In response and on the advice of counsel blessed with more brain cells than ideological fervor, the city of Houston sensibly concluded that it was unconstitutional to deny employees spousal benefits if they had married a same-sex spouse lawfully in another state or country. Then-mayor Annise Parker (later replaced by Sylvester Turner) accordingly directed the city to provide such benefits. A month later, Houston taxpayers and voters Jack Pidgeon and Larry Hicks sued the mayor and city (collectively, “the city”) to enjoin provision of such benefits, contending that it violated various Houston and Texas laws limiting marriage to different-sex couples. Pidgeon and Hicks won in the trial court, but the city appealed.

While the appeal was pending, on June 26, 2015, SCOTUS issued its second marriage equality decision in Obergefell v. Hodges. Obergefell combined cases from four different states and four lower federal courts, but the decision swept even more broadly. Although the Court ruled that “the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite- sex couples[,]” it also made clear that “same-sex couples may exercise the fundamental right to marry.” Full stop. All same-sex couples, not just those in a few states. Indeed, the Court noted that part of why it took up these cases was that disagreements among lower courts had “caused impermissible geographic variation in the meaning of federal law.” The Court held as well that “there is no lawful basis for a State” – any state – “to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” And the Court underscored that “The Constitution … does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” 

Under this reasoning, if same-sex couples were allowed to marry but not given the same benefits, they would not be treated equally, and this then would appear not to be marriage “on the same terms” as different-sex couples. Hence the Texas appeals court in Pidgeon’s case reversed the trial court’s injunction against the city.

Convinced of the righteousness of their cause, Pidgeon and Hicks tried to appeal to SCOTX. Like SCOTUS, most of SCOTX’s jurisdiction is discretionary. And the Texas Justices originally denied review in the case on September 2, 2016 – a fact Justice Boyd omits from his recitation of the procedural history of the case in his opinion for the court in Pidgeon. Then, following a mail campaign and pressure from top Texas Republican officials including the Governor, Lt. Governor, and Attorney general (see this Texas Tribune account), the court reversed course and granted review on the day of Donald Trump’s inauguration. (Today SCOTX revealed in its opinion that it treated all such “emails, letters, and postcards” as friend of the court briefs. I’m reasonably confident this is highly unusual as a general matter, but maybe a Texas procedure maven can shed light on whether it’s common practice for SCOTX.)  It bears noting here that all of the Justices on SCOTX face retention elections periodically, with three of them up in 2018, which seems likely to make them more susceptible to public pressure as they try to interpret law.

In its ruling, SCOTX’s primary procedural defense of taking up the case is its claim that the lower court erred in telling the trial court to revisit the case consistently with Obergefell and a Fifth Circuit U.S. Court of Appeals case, DeLeon v. Abbott. De Leon held Texas’s laws excluding same-sex couples from marriage unconstitutional, and SCOTX is right that its reasoning was not generally binding on Texas state courts. But if that was plain error, it was harmless error, as Obergefell made clear as a matter of supreme, federal, constitutional law that De Leon was right.

On the merits, SCOTX remanded because the Justices “agree with Pidgeon that the [U.S.] Supreme Court did not address and resolve that specific issue [of whether government employee spousal benefits must be provided equally] in Obergefell. ‘Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best . . . .’ Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017). The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and—unlike the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.” (Obergefell made plain that they are unconstitutional.)  And, disingenuously or shockingly inept, SCOTX cited SCOTUS’s ruling four days earlier in Pavan v. Smith to support its claim that Obergefell does not clearly require equality in government treatment of married couples:  “Already, the Supreme Court has taken one opportunity to address Obergefell’s impact on an issue it did not address in Obergefell, and there will undoubtedly be others. See Pavan, ___ U.S. at ___, 2017 WL 2722472, at *2.” said Pidgeon.

Pavan addressed a constitutional challenge to Arkansas’s refusal to list both spouses of two married female couples on the birth certificates of their children. Because Arkansas law provides that a husband is generally to be listed on the birth certificate when his wife gives birth, the couples had correctly argued that Obergefell’s equality mandate required that a wife be similarly listed when her wife gives birth. The Arkansas Supreme Court (ASC) disagreed, and the couples sought review from SCOTUS. 

Rather than grant review and receive full briefing and hold argument about whether or not this view of Obergefell is correct, however, SCOTUS summarily reversed ASC. As noted in a dissent in Pavan by new SCOTUS Justice Neil Gorsuch, installed by Donald Trump after Senate Republicans acted to deprive President Obama of his constitutional authority to fill Justice Scalia’s seat, “[s]ummary reversal is usually reserved for cases where ‘the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.’” The majority in Pavan apparently thought that was the case. Obergefell, they noted in the first sentence of the opinion summarily reversing ASC, explained that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” Because Arkansas’s refusal to list both married mothers on birth certificates “infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage,’ [quoting Obergefell], we reverse the state court’s judgment.” “Obergefell proscribes such disparate treatment[,]” SCOTUS explained. Thus, SCOTUS understands, as would reasonable people not hell bent on undermining marriage equality, that Obergefell’s interpretation of the Constitution means that government cannot treat married same-sex couples differently from married different-sex couples.

In trying to limit the reach of Obergefell and portray that case as leaving open for debate matters it clearly does not, ASC’s Pidgeon decision sinks even further. It contends that “[o]n the same day the Supreme Court issued its per curiam opinion in Pavan, it also granted certiorari in another case involving a same-sex-marriage issue Obergefell did not address. See Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, — U.S.L.W. — (U.S. June 26, 2017) (No. 16-111). The Court’s decision to hear and consider Masterpiece Cakeshop illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address.” This is risible. (Accord, Joshua Block in this tweet.)

Masterpiece Cakeshop is about the constitutional rights (religious and/or expressive) of people who want to resist a state anti-discrimination law that would bar a maker-seller of wedding cakes from discriminating against those who want them for a wedding of a same-sex couple. It is not about what equality of treatment the Constitution requires of government to extend to different-sex and same-sex couples who marry. Masterpiece Cakeshop truly is, at best, tangential to Obergefell and its vindication of same-sex couples’ constitutional right to marry and right to equal protection. Pavan and Pidgeon, however, are clearly about the equal treatment of married couples, same-sex or different-sex. And the teaching of Obergefell and Pavan are pellucid: equal is equal.

That is what the Texas trial court should now say on this pointless remand in Pidgeon, and if it does not, it is what the state appeals court and if necessary SCOTX should say. SCOTX claimed that “Pidgeon contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case.” He is “entitled to a full and fair opportunity to litigate [his] position[] on remand,” SCOTX said. But there was no need to disrupt the proceedings that would have happened on remand by granting review of the Texas Court of Appeals decision. And since SCOTX in Pidgeon vacated the trial court’s temporary injunction against Houston’s providing equal benefits, this is ultimately just political theater. Harmful political theater, though, designed to give aid and comfort to those who would continue to resist the Supreme Court’s constitutional equality decision in Obergefell and perhaps even to provide an occasion for SCOTUS to revisit marriage equality if more judges of Neil Gorsuch’s ilk find their way onto the U.S. Supreme Court.

Fear and Loving in Washington

“And you and me are free to be you and me”

It is surprisingly quiet here outside the Supreme Court of the United States the day before the Court hears oral arguments in Obergefell v. Hodges and the other three marriage equality cases it is considering this term.  There are a few more protesters, defenders of the old order, than there were yesterday.  The lines, one for the general public and one for attorneys admitted to practice in the Supreme Court, are longer now than they were when I started waiting in the bar line yesterday.  And there are more reporters out covering the calm before the storm.

But the people who are present to be witnesses to history, whether they secure one of the coveted seats in the Supreme Court for the arguments or end up displaying support from the sidewalks outside the imposing marble columns and steps of our nation’s highest court, almost all appear to support full inclusion of same-sex couples and their families in U.S. civic life and to share a sense of hopeful anticipation.  Attitudes range from the guardedly optimistic to the giddily exuberant — “I know it’s not the most likely but I’m still hoping for a unanimous decision like Brown v. Aboard of Education!” one woman and attorney gushed.

Tenth or eleventh in the bar line (depending on when you asked the line coordinator), I am thrilled to be able to attend the arguments in these momentous cases.  Far more than resolving the short-term legal fate of same-sex couples and families in Michigan, Ohio, Kentucky, and Tennessee, the Supreme Court’s decision in Obergefell may make a profound declaration of the fundamental dignity and equality of lesbian, gay, and bisexual persons (of all genders) in the U.S. constitutional order, in every state and every city.  As a gay man who professionally studies constitutional and LGBT legal issues and has taught and written about them for years, it is a special honor and treat for me to meet some of the brave couples who have been suing in courts across the country.  Their wide-ranging efforts as much as anyone’s have been vital to the educational, legislative, and litigation work that has set the stage for tomorrow’s historic hearing.

I tend to use CruzLines for more legal analysis, and I will resume doing so.  (Double-teaching this semester, covering constitutional law not only at the USC Gould School of Law but also for my friends at the UCLA School of Law, has kept me from posting of late.)  But I could not let the more human aspects of this moment pass unmarked.  On the side of the plaintiffs are arguments based on constitutional text, principle, and history, as well as the undeniable power of love to open hearts and minds and transform a culture.  On the other side are largely, at base, arguments rooted in fear, sometimes understandable fear of the unknown, fear of change, as well as from some quarters a shameless loathing of lesbigay people, lesbigay relationships, indeed our very lives.  But experience does not support those amorphous fears; it disconfirms what Supreme Court precedent and the plaintiffs quoting it have dismissed as “undifferentiated fears,” and “a bare desire to harm a politically unpopular group” cannot justify discriminatory treatment of a group of persons under the Constitution.  It is time, it is past time, for the country to live up to its constitutional commitments.  

Love Must Win.

Unveiling Marriage Equality?

“’Cause maybe they’ve seen us and welcome us all”

SCOTUSblog has a “flash” symposium on the Supreme Court’s grant of review Friday, January 16, in the four marriage cases from the Sixth Circuit, Same-sex marriage and the 14th Amendment.  My entry, UnveilingMarriage Equality?, addresses the issues the Court did, did not, and could take up in the cases; hazards a prediction regarding the ultimate outcome of the litigation; offers the skeleton of a defense of my position that the Constitution requires marriage equality; and sounds a note of caution about the Supreme Court’s recent spotty record on equality issues and the need for sustained work to bring about a more equal society in the United States.

Judge Posner Calls Bullshit on State Marriage Bans

“You asked for the truth and I told you

Through their own words

They will be exposed”

A day after a federal trial judge upheld Louisiana’s law denying marriage and marriage recognition to same-sex couples (discussed here), a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed decisions striking down Indiana’s and Wisconsin’s marriage exclusions, laws barring same-sex couples from marrying and denying recognition to those who married elsewhere.  Judge Posner’s September 4 opinion for the court in Baskin v. Bogan (opinion here) makes the Seventh Circuit the third consecutive federal appeals court to rule for marriage equality.  The pithy opinion in Baskin (for example, in explaining the background of Indiana’s 1997 reenactment of its ban on same-sex couples marrying: “The legislature was fearful that Hoosier homosexuals would flock to Hawaii to get married”) suffers from little constitutional jargon and boasts much common sense, in plain language devastating the ridiculous arguments that those defending marriage have been making that only more recently have begun to meet with the scorn they warrant.

Although recognizing that the cases before the court “formally” were about anti-gay and ‑lesbian discrimination, Posner maintained that “at a deeper level” they were “about the welfare of American children.”  This focus on children could be slightly off-putting to lesbigay persons with no children nor desire therefor.  After all, it is those adults who wish to marry a partner of the same sex against whom state marriage exclusions directly discriminate.  Nevertheless, as a gay man childless by choice, I for one am not too proud to accept marriage equality even if it rides in on a parenting bandwagon.  This lens on state marriage exclusions has significantly been foisted on courts by states, whose defenses of their discriminatory laws now largely boil down to claims of protecting children. 

Moreover, Posner does such a thorough job demonstrating just how unrelated or indeed counterproductive laws limiting marriage to different-sex couples really are to children’s welfare that his opinion could prove influential with Justice Anthony Kennedy when the Court takes up the constitutionality of state’s denying marriage to same-sex couples.  After all, Justice Kennedy expressed great concern for the plight of the children of same-sex couples at oral argument in United States v. Windsor, and his opinion for the Supreme Court in that case striking down the federal statute refusing to recognize valid marriages of same-sex couples prominently included that concern.  (Posner’s emphasis on (some of) the real underlying equality concerns in Baskin over formal constitutional doctrine could also resonate with Justice Kennedy, whose majority opinions in several “gay rights” cases are widely regarded as not closely tracking conventional doctrine.)

The court’s opinion treats the “irresponsible procreation” defense of the states’ marriage exclusions with perhaps more seriousness than it deserves; even Judge Posner’s rendering of the basis premise – the states’ “assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage” – gives it a measure of undue respect.  But don’t be fooled into thinking the court has been fooled by this risible defense; it is not.  And the opinion makes clear how laughable the court would find the argument (were the stakes not so real for all those harmed by the marriage exclusions, children and adults alike).

The opinion’s calling out of the states’ arguments in defense of discrimination range from the sublimely subtle to the unmistakably obvious.  At the former end of the spectrum, consider Judge Posner’s use of the word “brace”:  It appears twice in the opinion.  A brace is a pair, and the opinion uses the word twice, thus linking the referents.  The first time, it refers to “our brace of cases,” one appeal by Indiana and one by Wisconsin, with both states objecting to federal trial court decisions holding their marriage exclusion laws unconstitutional.  The second time the opinion uses the term, in illustrating the lack of moral weight carried by traditions just because they are traditions, it refers to presidential pardons of “a brace of turkeys” at Thanksgiving.  Thus, the opinion links the states’ defenses of their marriage laws with turkeys – which is what those defenses are, as the court’s opinion makes quite clear.

On the less subtle side:  “The only rationale  that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended,” Judge Posner writes, “is so full of holes that it cannot be taken seriously.”  The court pointedly asks why then clearly infertile heterosexually identified persons are allowed to marry when same-sex couples are categorically banned?  The state’s “involuted” (complicated, abstruse) arguments don’t work.  The suggestion that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for opposite-sex ccouples whose sexual intercourse may well produce children” he rightly deems “a strange argument; fertile couples don’t learn about child-rearing from infertile couples.”  And the state’s retreat to privacy doesn’t save the argument particularly since Indiana chose to let first cousins marry but only at an age when women clearly were not fertile.  As Posner sums it up:  “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.  Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry.  Go figure.”

As for the states’ “argument from the wonders of tradition” (snark!), the court dispatched it mercilessly, concluding part of its analysis:  “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving.”

Technically, the opinion concludes that laws excluding same-sex couples from marriage should be subject to heightened judicial scrutiny, not deferential rational basis review.  It settles on that level or “tier” of scrutiny only after carefully going through factors that the Supreme Court has said are relevant to the determination (such as general irrelevance to the trait on which the discrimination was based, the trait’s immutability, a history of discrimination against the group at issue).  Would that the federal trial judge who the day before upheld Louisiana’s marriage exclusions nominally under rational basis review – though he failed to complete even that deferential scrutiny – would have done the same before rejecting heightened scrutiny.

At the end of the day, or almost the end of the opinion, the court concludes, as more and more people are realizing, "the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.  May (at least five Justices on) the Supreme Court say the same when they choose and resolve one or more marriage lawsuits, as Justice Ginsburg expects will happen by the end of June 2016, or perhaps even by the end of June 2015.

Utah Officials Ask Court to Stop Same-Sex Couples Marrying

“There’s safety in numbers/And the more the merrier am I”

The same day U.S. District Judge Robert Shelby held that Utah’s ban on recognizing marriages of same-sex couples was unconstitutional (in Kitchen v. Herbert, addressed here), the state’s Governor and Attorney General asked him to stay his decision.  (Interestingly, the third named defendant, the Clerk of Salt Lake County, did not join in this motion.)  If successful, their motion for a stay of the judgment pending the appeal they said they’ll file would probably put a stop to same-sex couples marrying in Utah at least until a ruling on the merits by the federal appellate court (the U.S. Court of Appeals for the Tenth Circuit).  It seems unlikely Judge Shelby would grant the stay, and if the Tenth Circuit does, it probably would not be because of the legal reasoning in the state official’s motion, which is surprisingly weak.

When a loser in federal court asks for a stay of the court’s judgment in order to preserve the status quo during an appeal, Tenth Circuit rules require the court considering such a motion to consider four factors:  “(a) the likelihood of success on appeal; (b) the threat of irreparable harm if the stay or injunction is not granted; (c) the absence of harm to opposing parties if the stay or injunction is granted; and (d) any risk of harm to the public interest.”  The state official’s arguments on these points in their six-page motion are mighty slim.  I recognize that they filed this motion the same day the trial judge ruled in the case, but they should have been prepared for the possibility that he would rule against them and not stay his judgment.  (After all, that’s what Chief Judge Vaughn Walker did in the federal litigation that held California’s Proposition 8 unconstitutional.)

It can be hard to convince judges that they made a mistake in their rulings.  But the state officials did not even make much effort here.  Their position basically was a safety-in-numbers argument:  we’ve got lots of cases we cited upholding laws excluding same-sex couples from marriage.  Yet it is not enough to say “many other courts have concluded that the opposite-sex definition of marriage rationally serves society’s interests in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the likelihood that children will be born and raised in stable family units by their biological mothers and fathers.”  Not when those cases were decided before the Supreme Court’s landmark decision in United States v. Windsor at the end of June 2013.  And not when this court’s 53-page decision explained why those arguments are (to use a technical term) bogus.  And the state’s closing observation, that in most states with marriage equality it has “been accomplished through the democratic process,” is without more a non sequitur in a section of a motion devoted to the legal correctness of the ruling they seek to stay.

Next, parties seeking to stay a judgment are supposed to show that they will face “irreparable harm” if the stay is denied and the judgment allowed to be operative.  Having failed in the trial court to identify any plausible adverse consequences of letting same-sex couples marry, the state official defendants here did the best they could, offering two injuries.  First, they relied on precedents that say, when a state is enjoined from enforcing its democratically adopted laws, it faces irreparable injury.  That may be true for constitutional laws, but if a law is unconstitutional, the state had no business adopting it, and being enjoined from enforcing it is not much of if any “injury.”  Second, consistent with their narrative in the trial court that the marriage bans were enacted not to hurt lesbigay people but to help all of society, the state officials benevolently suggested that same-sex couples would suffer irreparable injury if allowed to marry “under a cloud of uncertainty” before all appeals were resolved.  The state officials assume that the trial court will be reversed (“when their marriages are declared invalid,” they write (my emphasis)), so this argument as well as the state-cannot-enforce-its-laws argument depend on how likely it is that the trial court will be reversed.  Independently, one might of course think that same-sex couples are in a better position to evaluate for themselves whether the possibility of a future marriage invalidation is more harmful than the reality of continuing in the present with no legal relationship recognition.

On the flip side, people seeking to stay a court’s judgment are also supposed to address the harm to the opposing side if the judgment were put on hold.  Here, the state officials argue that the only harm is delay, and that’s not irreparable, they say.  But if marriage were as symbolically powerful as their ‘responsible procreation’ arguments suggest, delay might be a more serious and not necessarily reparable harm.  Moreover, there are other harms not clearly reparable.  For example, a person might be forced to testify against her same-sex partner, for example, whereas the Utah Rules of Evidence protect spouses from being forced to do that.  Or one party might die, leaving his partner never having been able to marry.

As for risk of harm to the public interest, all the state defendants could muster for this fourth factor was to reassert the claims that the people of the state have a public interest in deciding the contours of state marriage law (again, something true only insofar as their decisions do not violate the Constitution) and that uncertainty about marriage validity harms the public interest.

[UPDATE Mon. Dec. 23, 8:15 a.m.  Over the weekend, the state officials asked the Tenth Circuit appeals court to stay the trial judgment until the trial court rules on their stay motion.  Because they were not actually asking the appellate court to put things on ice until after that court finally rules on the merits, they thought they need not address the four factors above.  But the two Tenth Circuit judges before whom this motion noted that the national and local rules governing the case did not contemplate such a stay order, and so this motion did not comply with the rules.  The ball (the stay motion, in this case) is back in Judge Shelby's court, where arguments are being held as this update is typed.]

Federal Court in Utah Holds Marriage Ban Unconstitutional

“Are you ready, Are you ready for this?”

On Friday, December 20 a federal trial court in Utah held in Kitchen v. Herbert that state’s statutory and constitutional bans on marriage by same-sex couples unconstitutional and enjoined their enforcement.    While this decision could be appealed by the state (and I would be pleasantly surprised if Utah did not appeal), same-sex couples are already marrying.  Coming the day after the New Mexico Supreme Court held that that state’s exclusion of same-sex couples from marriage violated the state constitution, this decision highlights the huge crack in the edifice of marriage discrimination in the U.S., eighteen states wide (plus the District of Columbia) and growing.

The federal trial court held that Utah’s marriage ban was unconstitutional because it violated same-sex couples’ fundamental right to marry protected by the Due Process Clause of the U.S. Constitution and because it violated the Constitution’s Equal Protection Clause.  Quoting Justice Scalia’s dissent in United States v. Windsor (the U.S. Supreme Court case that struck down part of the federal “Defense of Marriage Act”), the court concluded that “the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”

Unlike the New Mexico court, the Utah federal court squarely relied on the constitutional right to marry.  It rejected the state’s claim that the marriage exclusion did not violate that right because lesbigay people could marry heterosexually.  That liberty would be “illusory,” the court said:  “The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.”

Like the New Mexico case, Kitchen rejected the claim that Utah was justified in denying marriage to same-sex couples because they cannot procreate by themselves.  Procreation “is not a defining characteristic of conjugal relationships from a legal and constitutional point of view.  The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children.”  Utah’s effort to get around the fact that it does not make procreative ability “a defining characteristic of conjugal relationships from a legal … point of view” failed.  As the court observed, “Same-sex couples are just as capable of providing support for future generations as opposite-sex couples, grandparents, or other caregivers. And there is no difference between same-sex couples who choose not to have children and those opposite-sex couples who exercise their constitutionally protected right not to procreate.”

The court also rejected the State’s ‘new right of same-sex marriage’ argument.  It properly noted that the Supreme Court did not use this approach to framing the right at issue in Loving v. Virginia.  And after discussing the reasons people seek to marry, the court concluded that “[b]oth same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.”  Relying on Lawrence v. Texas, the court similarly concluded that this analysis was not changed by the fact that there was no long tradition of honoring assertions of the right to marry by same-sex couples.  And the Court again quoted Justice Scalia, this time his Lawrence dissent, where he had argued that the decision would lead down a slippery slope to same-sex couples marrying.  (Although Scalia believes this the wrong constitutional interpretation, perhaps it will be of some comfort to him to be proven right.)  Because Utah’s marriage ban burdened same-sex couple’s right to marry, the court held it would have to survive strict scrutiny.  But since, as the court discusses under its equal protection analysis, the ban did not even have a rational basis, it necessarily also failed the less deferential strict scrutiny applicable under the right to marry.

The court then addressed the plaintiff couples’ equal protection challenge to Utah’s marriage ban.  In contrast to the previous day’s New Mexico Supreme court decision, the trial court here seemed to agree that the ban amounted to sex discrimination. The court noted, again correctly, that the Loving decision rejected the argument that Virginia’s interracial marriage ban didn’t discriminate on the basis of race because everyone was free to marry someone of their own race.  But the court did not definitively conclude that it must subject the state laws to the intermediate scrutiny used for sex discrimination because the ban failed even the easier test of rational basis review.  And rational basis review was what the court believed it had to apply to the claim that the marriage ban discriminates on the basis of sexual orientation due to Tenth Circuit Court of Appeals precedent it viewed as binding.

When the court considered the point of the marriage ban, the state did not look good:  “”First, the avowed purpose and practical effect of Amendment 3 is to deny the responsibilities and benefits of marriage to same-sex couples, which is another way of saying that the law imposes inequality.  Indeed, Amendment 3 went beyond denying gay and lesbian individuals the right to marry and held that no domestic union could be given the same or substantially equivalent legal effect as marriage.  This wording suggests that the imposition of inequality was not merely the law’s effect, but its goal.”  And the fact that the state entrenched its statutory ban in the state constitution suggested that this “preemptively denied rights to gay and lesbian citizens of Utah that they may have already had under the Utah Constitution.”

In the end, though, the court thought that Utah’s marriage ban was unconstitutional under “the well-settled rational basis test.”  It had to bear a rational relationship to a legitimate state interest.  In answering that question, the court rightly focused not simply on why Utah offers marriage to different-sex couples, but on why the state banned it for same-sex couples, and so on “whether the State’s interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying.”  And the answer to that inquiry was a resounding ‘No.’

Indeed, the court concluded that “it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts.”  And the state’s interest in “optimal child rearing” fared no better than this “responsible procreation” interest.  The basic problem here was that “the State fails to demonstrate any rational link between its prohibition of same-sexvmarriage and its goal of having more children raised in the family structure the State wishes to promote.”  The court also rejected Utah’s claimed interest in proceeding with caution because of a lack of any evidence of harms from letting same-sex couples marry and because it would improperly shield all state discriminations from any meaningful rational basis review, for states could always assert an interest in wanting more evidence before it stopped discriminating.  Finally, the court concluded that preserving the “traditional definition of marriage” as different-sex only for the sake of preserving that “tradition” was an inadequate justification.

Because the marriage discrimination was unconstitutional, the court did not think it necessary separately to analyze a challenge to Utah’s refusal to recognize marriages of same-sex couples performed by other jurisdictions.  It was all unconstitutional, and the court hammered this home by a detailed comparison of the state’s arguments here with the state’s arguments in defense of the interracial marriage bans invalidated in Loving v. Virginia.  The state simply cannot demean same-sex couples in the way that the marriage ban did.

So, as noted earlier, the federal court enjoined Utah from enforcing its marriage ban.  Time will tell whether the state appeals, and, if it does, whether the decision gets affirmed.  For now, though, same-sex couples in Utah and their families can and are enjoying a wonderful Christmas present – constitutional justice and the equal freedom to marry.