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.

New Mexico Supreme Court Unanimously Requires Equal Marriage

“Find a seed and plant it/Love will make it grow”

Ruling in Griego v. Oliver, a suit brought by six couples, the New Mexico Supreme Court unanimously ruled on December 19, 2013, that the state constitution’s equality guarantees require the state to let same-sex couples marry and have the same attendant rights New Mexico affords to different-sex couples.  This brings to seventeen the number of states with marriage equality, a full third of the nation’s states, plus the District of Columbia.

Relying on various indications of legislative intent, the court held that New Mexico’s marriage statute restricted marriage to different-sex couples (despite its facial gender neutrality).  It then considered whether that restriction violated the state constitution’s equal protection and due process guarantees.

The Court’s due process fundamental rights discussion was a bit perplexing.  The defenders of the marriage exclusion claimed, as opponents of marriage equality usually do, that the right to marry is the right to marry a person of a different sex, so that the plaintiffs were supposedly asking for recognition of a ‘new’ “right to marry a person of the same gender.”  The court apparently rejected this move, which tried to build the identities of the parties claiming the right into the definition of the right.  Instead, the court asserted that “that the correct question is whether the right to marry is a fundamental right requiring strict scrutiny[.]”  This the court said was a “difficult question.”  Even though the New Mexico supreme court had already noted early on that the plaintiffs were pressing arguments under the state constitution only, not the federal Constitution, the court proceeded to survey federal decisions by the Supreme Court of the United States (SCOTUS) to concluded that SCOTUS had not answered whether the right to marry is a fundamental one requiring strict scrutiny or not.  The New Mexico court never explains the relevance of this federal law question to the state law issue before it.  (And note: Although SCOTUS has not used the magic words “fundamental right”/“strict scrutiny” in its marriage cases I don’t think this is reasonably in question.  I won’t go into a full analysis here, but will note that Loving v. Virginia (1967) expressly called the right to marry a “fundamental freedom,” language the New Mexico Supreme Court did not quote or attempt to parse.)

Ultimately, the New Mexico Supreme Court did not need to resolve the right to marry issues because it concluded that the marriage exclusion violated the state constitution’s equal protection guarantee.  The plaintiffs had argued that the marriage exclusion amounted to both sex discrimination and sexual orientation discrimination.  Following the California Supreme Court’s 2008 decision, the New Mexico court gratuitously denied that “that the marriage statutes at issue create a classification based on sex.”  In neither case did the state supreme courts need to address this, because they concluded that the challenged marriage exclusions amounted to unconstitutional sexual orientation discrimination (against lesbigay persons and/or same-sex couples).  The conclusion also rested on the facile notion that men and women had the same rights under the exclusion: the right to marry a person of the same sex.  The U.S. Supreme Court could have viewed Virginia’s marriage laws as giving white and black people the same rights (to marry a person of the same race), yet it rejected this “equal applicability” argument in Loving.  Moreover, the New Mexico court’s reasoning on this point is curiously in tension with its recognition here in Griego that this very court had earlier held “that same-gender couples have custody rights to children under the New Mexico Uniform Parentage Act because, among other reasons, ‘it is against public policy to deny parental rights and responsibilities based solely on the sex of either or both of the parents.’” (emphasis added, citation omitted)

Fortunately, the (lack of) sex discrimination reasoning did not ultimately matter because the New Mexico Supreme Court held that sexual orientation discrimination is subject to intermediate scrutiny under the state constitution and that the marriage exclusion could not survive that level of scrutiny.  The court refused to adopt the most deferential standard of judicial review (which would have upheld the marriage exclusion if it had merely a “rational basis”), in part because the fact that “same-gender couples (the LGBT community) are a discrete group who have been subjected to a history of purposeful unequal treatment is not fairly debatable.”  Moreover, the court concluded “that effective advocacy for the LGBT community is seriously hindered by their continuing need to overcome the already deep-rooted prejudice against their integration into society, which warrants our application of intermediate scrutiny in this case.”  Accordingly, the court asked whether the marriage exclusion was “substantially related to an important governmental purpose.”

The court understood the defenders of the marriage exclusion to be arguing that it advanced governmental interests in “responsible procreation,” “responsible child-rearing,” and avoiding “the deinstitutionalization of marriage.”  The court rejected the latter contention for lack of evidence that whether or not different-sex couples continue to marry has anything to do with whether same-sex couples are allowed to marry (and because to the extent that the argument was based in moral judgments or tradition, it was insufficient to justify the discrimination).

The court also rejected procreation and child-rearing as justification for the marriage exclusion.  They were not reflected in the state’s marriage laws, which instead were about supporting the commitments of couples and any children they might wish to have.  Different-sex couples were not required to be able or inclined to procreate or raise children, and same-sex couples are legally entitled to and in fact raising children, ably and devotedly, in New Mexico and across the country.  (The court did not even deign to address the claim some courts, like those in New York and Washington state had accepted, that marriage discrimination was acceptable because different-sex couples can accidentally get pregnant but same-sex couples could not.)  Although the court had invited interested parties to participate by filing amicus briefs, “[t]he supposed justifications for the discriminatory legal classification [offered there] are categorically at odds with the comprehensive legislative scheme that is intended to promote stable families and protect the best interests of children.  Denying same-gender couples the right to marry and thus depriving them and their families of the rights, protections, and responsibilities of civil marriage violates the equality demanded by the Equal Protection Clause of the New Mexico Constitution.” 

Accordingly, the court ordered that same-sex couples be allowed to marry in New Mexico, afforded all the same rights as different-sex couples (including, presumably, the right to have their valid out-of-state marriages recognized), and provided marriage applications, licenses, and certificates with gender-neutral language.  This decision building on earlier marriage equality litigation (and the Supreme Court's decision in Lawrence v. Texas) is terrific news for same-sex couples in New Mexico (nor or in the future), and for the campaign for sexual orientation equality nationwide.

[edited 11:28 p.m. PST Dec. 19, 2013 to correct two typos and specify second Loving reference]

Supreme Court to Hear Religious Exemptions Cases

“He’s as decent as a minister!

Absolutely

He’s as sober as a judge!

He subscribes to ev’ry charity!

And his hobby’s making fudge!”

The Supreme Court announced today that it would hear a pair of cases challenging the ‘contraception mandate’ of the Affordable Care Act as applied to certain for-profit corporations owned by persons with stated religious objections to contraceptives.  Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialty Stores v. Sebelius will likely be heard in March 2014 and decided by the Court in June 2014.

Among the many things the Affordable Care Act does is require health care plans for employees to cover certain preventive health care services, which by regulation include a number of forms of contraception by women.  The same implementing regulations exempt non-profit religious organizations with objections to providing some or all contraceptive services, and they establish an alternative mechanism for their employees to have contraceptive coverage.  For-profit corporations, however, are not exempt.

Numerous suits have been filed in courts across the country to this coverage mandate; the ACLU has a useful and largely comprehensive summary here.  Plaintiffs have relied on a federal statute, the Religious Freedom Restoration Act (“RFRA), and the Free Exercise Clause of the U.S. Constitution, claiming that those entitle them to exemption from the coverage requirements to  which they religiously object.  Courts have split on these claims.  In the Hobby Lobby case, the U.S. Court of Appeals for the Tenth Circuit ruled that RFRA exempted both for-profit corporations (such as Hobby Lobby, which has some 13,000 employees) and the corporations’ individual owners from the federal coverage requirement.  In the Conestoga Wood case, in contrast, the federal appeals court for the Third Circuit held that neither the Free Exercise Clause of the Constitution nor RFRA shielded a for-profit, secular corporation, employer of about 950 people, or its owners from the obligations of the Affordable Care Act.  In that court’s view, for-profit, secular corporations do not have rights under the First Amendment or RFRA to the free exercise of religion.

The Supreme Court granted review in both cases, thus enabling it to address the scope of both the First Amendment’s guarantee of religious freedom and the extent of such freedom under RFRA, a federal statute passed by Congress to protect the exercise of religion more after the Court held that the Free Exercise Clause was not violated by neutral laws of general applicability, which here the government argues the Affordable Care Act’s coverage mandate is.  Although there is scant Supreme Court precedent for attributing religious exemption rights to secular, for-profit corporations, how this Court as constituted by the current Justices will likely rule is far from clear.  We may have to await oral arguments, probably in March, to get a better sense of how the Justices view this is

European Court Rules Civil Unions Cannot Exclude Same-Sex Couples

“We're still strivin' for the sky, no taste for humble pie”

In Case of Vallianatos and Others v. Greece, the European Court of Human Rights ruled by a vote of 16-to-1 on November 7, 2013, that Greece violated same-sex couples’ right to equality taken in conjunction with their right to respect for private and family life by excluding same-sex couples from the civil unions Greece adopted in 2008 for “de facto partnerships” of different-sex couples.  Each of the plaintiff couples was awarded 5000 Euros compensation for the non-monetary harms they suffered from the discriminatory exclusion.

The Greek civil unions law was enacted to provide a more flexible legal framework than marriage for cohabiting couples and the children of those couples who were raising children.  Other than Lithuania, Greece is the only country in the Council of Europe to “provide for a form of registered partnership designed solely for different-sex couples, as an alternative to marriage (which is available only to different-sex couples).”

The Court reaffirmed that same-sex couples “are in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationship.”  Yet the civil unions law treats them differently based on their sexual orientation, the Court ruled.  (Thus far U.S. courts have largely recognized that marriage laws limited to different-sex couples embody sexual orientation discrimination, rejecting the shallow argument that they don’t because a gay man could marry a woman and a lesbian could marry a man.)   This sexual orientation discrimination required justification.  Greece chiefly relied on asserted interests in the protection of non-marital children and “strengthening the institutions of marriage and the family in the traditional sense.”  While the Court accepted that protecting “family in the traditional sense” was a legitimate aim, the sexual orientation discrimination in the law meant that the exclusion of same-sex couples from civil unions had to be “necessary” to serve those interests.

Looking at the actual provisions of the civil unions law, the Court concluded that it “was primarily aimed” not at regulating child-rearing but “at affording legal recognition to a new form of non-marital partnership.”  For example, different-sex couples could enter civil unions regardless of whether they had children.  Same-sex couples, in contrast, had no options under Greek law for having their relationship legally recognized.  This conflicted with an emerging trend in the law of European Union member countries, nine of which allowed same-sex couples to marry civilly and seventeen of which provided for “some form of civil partnership for same-sex couples.”

Judge Paulo Pinto de Albuquerque, a member of the Faculty of Law of the Catholic University of Portugal, dissented in part because he believed the same-sex couples should have been required to “exhaust their remedies” by first presenting their claims to the courts of Greece.

Prop 8 Proponents Ask California Supreme Court to Stop Marriages

“If I make improper suggestions
…
Desperate but not serious”

Here they go again:  Bypassing the lower state courts, the Proponents of Proposition 8 have filed a petition for a writ of mandate (here) asking the California Supreme Court to order the clerks of the counties in California to stop issuing marriage licenses to same-sex couples.  It seems very unlikely that the California Supreme Court would exercise its discretion to take up this matter and then rule in favor of the proponents, especially since those proponents are or come very close to asking the state court to interfere with a federal court injunction.

In a nutshell, the proponents are arguing first that Prop 8 is actually constitutional, that federal judge Vaughn Walker was mistaken in ruling to the contrary after the trial on Prop 8, and that the U.S. Supreme Court has not disagreed with them because it dismissed the Prop 8 appeal on standing grounds rather than reaching the constitutional equal protection or right to marry issues.  Second, they argue that county clerks have a ministerial duty to enforce the marriage laws of the state, which in their view include Prop 8, and that by ordering them not to, State Registrar Tony Agurto, following the legal conclusion of Attorney General Kamala Harris, violated the provision of the California Constitution that bars administrative agencies and at least some governmental executive officials from refusing to enforce state laws on the ground that they’re unconstitutional unless an appellate court has made a determination that the state law at issue is indeed unconstitutional.  (Although the U.S. Court of Appeals for the Ninth Circuit did “make a determination” that Prop 8 is unconstitutional, the proponents of the measure argue that since the U.S. Supreme Court vacated that decision, it cannot satisfy this state constitutional clause.)  And, third, they argue that the issue is so important, implicating as it does (in their view) the efficacy of the state initiative process, that these supposedly lawless same-sex marriages must be stopped immediately.

Unless a majority of the California Supreme Court Justices are extremely peeved that the U.S. Supreme Court ruled that the Prop 8 proponents lacked federal court standing, this latest effort to revive Prop 8 (or at least to demonstrate to constituents the proponents’ need for funds to keep up their committed fight for the measure’s legal life) is unlikely to go anywhere.  It’s certainly unlikely to result in an immediate order against issuing marriage licenses to same-sex couples.  However important the rule of law and the California initiative process may be, the petition contains no explanation for why those cannot be vindicated through an orderly judicial process that resolves Prop 8’s constitutionality and an order at the end of it to resume enforcing Prop 8, if that judicial process concludes it really is constitutional.

Moreover, this petition dangerously veers into or close to asserting the power of state courts to interfere with federal court injunctions.  Indeed, the proponents’ arguments make claims about the federal court’s supposed lack of authority of have bound certain defendants in certain ways.  Given our system of federalism, and specifically of the supremacy of federal law, state courts just are not allowed to disregard or narrow federal court orders (as was made clear to the chagrin of the segregationist South in the mid twentieth century).  Even if they were right that the state Attorney General erred in concluding that county clerks are within the terms of the federal court injunction against Prop 8 as employees controlled or supervised by the state defendants, the proper route to clarify the scope of a federal court injunction is to return to that federal court and ask it to rule.

Finally, in what is hard to believe is a good faith mistake, the proponents do not acknowledge that the City and County of San Francisco was allowed by Judge Walker to intervene as a plaintiff challenging Prop 8.  Instead, they refer repeatedly to “the four plaintiffs,” meaning the two same-sex couples who were plaintiffs.  They then argue that because those couples are now married, the federal injunction cannot even apply to Los Angeles and Alameda Counties, where those couples reside.  (Again, that’s a question about the proper scope of the federal injunction that the state courts cannot do anything about.)  But since San Francisco was a prevailing plaintiff, and the federal court injunction prohibits Prop 8 from being enforced against it, at a very minimum it can continue to issue marriage licenses to same-sex couples even if no other county could (which I do not believe to be the case).  Because Californians can get a marriage license in any county regardless of their residence or where the wedding will be held in the state, the Prop 8 proponents desperate, last-ditch (one hopes!) petition here cannot stop marriage equality in the state.  The futility of their petition is, thus, one more reason why the California Supreme Court is likely to deny it.  For the sake of those same-sex couples planning marriages and weddings, I hope the court does so quickly.