SCOTUS and Marriage Equality, Round 2

The state of Utah is asking the Supreme Court to hear an appeal of the 10th Circuit Court of Appeals ruling that upheld a district court ruling that overturned their ban on same-sex marriage as unconstitutional. Lyle Denniston explains the situation:

With the case going to the Justices via such a petition, the Court will have complete discretion whether to review the Tenth Circuit ruling, or pass it up. Utah officials are almost certain to argue that the Court should take up the issue promptly based on the argument that there is now a conflict among federal appeals courts on the constitutionality of such bans.

The Eighth Circuit upheld such a ban, but that was in 2006, seven years before the Supreme Court’s Windsor decision — a ruling that many judges have said changed the legal landscape for review of those state laws. In the Windsor decision, which involved only a federal law, the Court indicated that it was not taking a position at that time on the validity of state laws forbidding same-sex marriages.

On the same day that it issued the Windsor decision, the Court chose not to decide on the merits a plea to revive California’s ban, “Proposition 8.” It did so by ruling that the sponsors of that ballot measure did not have a legal right to pursue an appeal to defend the proposition. As a result of that decision, though, “Proposition 8″ was nullified because a federal trial judge’s ruling against it went into effect, making California the largest state in the nation where same-sex marriage is now permitted…

Another federal appeals court, the U.S. Court of Appeals for the Fourth Circuit, is expected to rule shortly on the constitutionality of Virginia’s ban. That case has been handled in the Fourth Circuit by the legal team of David Boies and Theodore Olson, two high-profile lawyers who had led the court battle against California’s “Proposition 8.” Also involved in the Fourth Circuit case were lawyers for the American Civil Liberties Union and Lambda Legal, a gay rights advocacy group.

The Tenth Circuit may also rule shortly on another same-sex marriage case, involving Oklahoma’s prohibition on such marriages. That case was heard by the same three-judge panel as the Utah case.

I had forgotten about that 8th Circuit ruling from 2008. If the Supreme Court takes the case — and it’s not clear that they will, of course — there will be only one thing that matters: Is Justice Kennedy ready to go all the way to full marriage equality yet? His majority opinion in Windsor last year laid out a crystal clear case that laws against same-sex marriage were a violation of the Equal Protection Clause of the 14th amendment because they were motivated solely by anti-gay bigotry, but he applied that ruling only to federal recognition of same-sex marriages, not state recognition. I think he would like to extend that decision all the way, but wanted to give the states a chance to catch up first and go incrementally. If he thinks two years is enough time for that, there’s little doubt what the ruling will be in this case.

Here’s why they may not agree to hear the case: It takes four votes to grant cert and you’ve got four conservatives firmly against marriage equality and four liberals firmly against it. Which side, if either, is going to feel confident that they’ll get Justice Kennedy on their side? If neither side feels confident of that, they might all vote not to hear the case. That would only delay the inevitable, of course. With almost every state with a ban on same-sex marriage now being challenged in court, eventually the Supreme Court has to rule on the matter.

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  • Reginald Selkirk

    … you’ve got four conservatives firmly against marriage equality and four liberals firmly against for it.

    I’m sure the originalist Scalia must be for marriage equality, since there is nothing in the orginal constitution to forbid it.

  • colnago80

    Is there an appeal from a district court decision in the 8th circuit pending? If so, the the SCOTUS may want to see if the 8th circuit reverses the previous ruling. If it does, then there is no conflict between the circuits and the SCOTUS may want to let the matter lie doggo, possibly until there is a conflict between two of the circuits.

  • sundoga

    What colnago said. If the 8th circuit gets to reverse itself, which in the post-Windsor environment it almost certainly will do given the chance, there’s no conflict for the SCOTUS to adjudicate – they might well never need to rule on marriage equality at all, yet have us still end up in an equal marriage situation in every state.

  • sundoga “…they might well never need to rule on marriage equality at all, yet have us still end up in an equal marriage situation in every state.”

    Sure, but on the other hand, Mississippi.

  • John Pieret

    colnago80 @ 2:

    Is there an appeal from a district court decision in the 8th circuit pending?


    The good news is that the 8th Circuit’s decision is not particularly strong post <Windsor. First of all, the plaintiffs in Citizens for Equal Protection v. Bruning weren’t even arguing for a right to same sex marriage. The Nebraska constitutional amendment, passed by initiative, not only prohibited same sex marriage but the “uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship.” Their primary argument was that amendment denied them access to the political process to try to get the same sort of benefits as married couple do.

    The 8th Circuit found that states have the right to control marriage (no mention of Loving v. Virginia) and basically found that, between the “traditional” definition of marriage and the state’s interest in promoting procreation, the amendment met the lowest standard of review, “rational basis.” Alito raised the procreation argument in his dissent in Windsor and it didn’t make Kennedy blink.

    Interestingly, the 8th Circuit quoted Judge Posner as follows:

    This is not to say that courts should refuse to recognize a constitutional right merely because to do so would make them unpopular. Constitutional rights are, after all, rights against the democratic majority. But public opinion is not irrelevant to the task of deciding whether a constitutional right exists. . . . If it is truly a new right, as a right to same-sex marriage would be . . . . [judges] will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right.

    As we all know, there has been a huge shift in public opinion in the 8 years since the 8th Circuit ruled. Now, a majority of Americans think gays should have a right to marry those they love.

  • colnago80

    Re John Pieret @ #5

    Currently, SSM is recognized in Iowa and Minnesota in the 8th Circuit. As I understand it there are currently District court cases on the subject underway in the other states in that Circuit ( North Dakota, South Dakota, Missouri, Nebraska, and Arkansas) so there might be a decision in one of those Districts in the near future which would be appealed to that Circuit regardless of the outcome at the District Court level. The SCOTUS might want to wait to see if the previous 8th Circuit decision would be reversed on appeal. As Sundoga @ #3 opines, It is possible that the SCOTUS might prefer to punt as they did on the Prop 8 decision if there is no conflict between the Circuits.

  • cptdoom

    The issue for Kennedy is that he has painted himself into a bit of a corner, as Scalia warned, and a number of judges who have ruled post-Windsor love to quote, when state bans come in front of the Court again, whenever that may be. With court after court using his own reasoning in Windsor to rule against state bans, how can he decide any differently? Thankfully, the unanimity of decisions to this point should be a strong argument that the country is ready for full marriage equality, along with the shift in public opinion and the scarcity of opponents (as seen at the NOM “March for Marriage”).

  • John Pieret

    As I understand it there are currently District court cases on the subject underway in the other states in that Circuit ( North Dakota, South Dakota, Missouri, Nebraska, and Arkansas)

    I don’t know of a case in Missouri but you’re right that SCOTUS could refuse cert in all the circuit cases for the time being and see what shakes out. SCOTUS is not required to hear a case simply because there is a conflict between the circuits, though that is a strong argument for granting cert. SCOTUS is in complete control of its docket (with some small exceptions) and can refuse to hear any case for any reason it wants or for no reason at all and it doesn’t have to explain why.

    Will it do so? Maybe. Maybe Kennedy is ready to bite the bullet, in which case the four moderates on the Court can grant cert. What’s certain is that it can’t duck the issue forever, not with the drumbeat of lower courts overturning SSM bans. If not this October’s term, probably in 2015.

  • whheydt

    Last time I checked. in every state, either same-sex marriage is legal or the anit-SSM laws are under challenge in the courts. (The last state where a challenge was started was North Dakota.)

    I share Ed’s reasoning for why SCOTUS may decline–or delay–taking the Utah case. On the other hand, I thought they wouldn’t take the Prop. 8 case for that reason, though you’ll notice that, in the end, they ducked that one. In addition, this court may not want to get themselves an equivalent to Roe v. Wade. If all the circuits agree that, post-Windsor, SSM is protected, then SCOTUS can let it happen nationwide without saying a thing–and not being blamed for it by the fundamentalist noise machine.

  • whheydt

    Re: John Pieret @ # 8….

    Actaully, they CAN duck it if all the appeals circuits come down on the same side. That’s kind of the point.

  • abb3w

    Last I heard, there’s a massive circuit split — with the 8th as the outlier. There’s post-Windsor pro-legalization rulings in more than half the circuits (mostly being appealed), and the issue is mooted in two more from state action to legalize.

    Much as the justices might like to delay hearing the case, it’s going to be hard to close their eyes to that; and the post-Windsor trend seems likely to hearten Kennedy when whatever case reaches him.

  • colnago80

    Re abb3w @ 311

    As we sit here today, the 8th Circuit is in disagreement with the other Circuits. However, there may soon be an appeal from one of the District courts in that circuit which would give the 8th Circuit the opportunity to reverse the earlier decision, based on Windsor. Should that occur, it would not surprise me if the SCOTUS kicks the can down the road, allowing the issue to work itself out at the lower levels. As has been stated, if there is no disagreement between the circuits, there is no necessity for the SCOTUS to intervene.

  • John Pieret

    There are challenges to SSM in all states but not all states have Federal court challenges. The two cases in Missouri, for example, are in state court. While the state court cases could conceivably make it to the Federal courts under certain circumstance, it would take a long time, having to work their way through to the state’s highest court first.

    The North Dakota and South Dakota cases were filed within the last couple of months. The Arkansas case has been waiting for a hearing date since January on the State’s motion to dismiss. It doesn’t look like any of those are close to making it to the 8th Circuit.

    There are other issues to be decided than the constitutionality of SSM, particularly the level of scrutiny to be applied to state actions concerning LGBT people in other situations than SSM. Two circuits, the 9th and 2nd (in the Windsor case, which SCOTUS did not follow but did not specifically overrule either) have applied “heightened scrutiny,” while the 10th applied “strict scrutiny.” The lower court cases have applied all three in varying degrees and the 8th Circuit applied “rational basis.” The conservatives on the Court might want to keep the level of scrutiny to the lowest, “rational basis,” and, if Roberts, looking to the legacy of “his” court decides to join with Kennedy, he could assign himself to write the majority opinion so he could do that.

    Allowing the circuit rulings to stand is, IMNSHO, only a temporary possibility. There is going to have to a resolution of the issue of the level of scrutiny to apply to laws affecting all LGBT issues.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    So, here’s why I think that they may take it:

    Tide is changing. The argument for constitutionalizing a right to marry regardless of gender is consistently winning over both members of the public and members of the judiciary. But Kennedy is clearly waffling.

    Why shouldn’t the 4 conservative members take every damn marriage case they can as **soon* as they can. The landscape is only going to get worse for them unless they force some favorable precedents in now, while they still have a prayer of doing so.

    I actually think this is likely what happened with prop 8 – the 4 (most) conservative justices voted to take the case, and the other 5 didn’t want it, weren’t ready to decide on the merits, and never were willing to take the bait and defend a gender-neutral right to marry before political conditions were more favorable.

    It wasn’t really a surprise that they dodged it. If I’m right, the battle is over the favorable terrain: the right wants the battle fought now, on the most favorable legal and political terrain its likely to have for the foreseeable future. The center and moderate left want a battle of maneuver, not engaging directly, but fending off direct assaults and trying to achieve a better position before going on offense.

  • John Pieret

    Crip Dyke:

    I tend to agree with you. The conservatives on the Court (and the rational ones in the wider world) know that they are, at best, fighting a rear guard action against full LGBT rights. They may well decide to fight here for some scrap of a victory, particularly in defending the Religious Freedom Restoration Act clones they have and will continue to try to enact to give Xians in public accommodation businesses the right to discriminate against gays, despite any local ordinances including LGBT people in anti-discrimination protections. Such laws on the state level almost certainly fail under strict scrutiny; likely fail under heightened scrutiny; but may just survive rational basis on the grounds of protecting another right, the freedom of religion.

  • abb3w

    @12, colnago80

    However, there may soon be an appeal from one of the District courts in that circuit which would give the 8th Circuit the opportunity to reverse the earlier decision, based on Windsor. Should that occur, it would not surprise me if the SCOTUS kicks the can down the road, allowing the issue to work itself out at the lower levels.

    Only superficially semi-plausible. The 8th covers Iowa, the Dakotas, Minnesota, Missouri, Arkansas, and Nebraska. Iowa is an implausible source of federal challenge, since their ban has been struck down by a state court; Minnesota similarly, having also legalized legislatively. The most advanced fights in Arkansas, Missouri, and Nebraska are still in state courts, which have not even finished there and thus not even begun appeals at the federal level. The fights in the Dakotas are federal challenges, but are not even to the appellate level. This leaves the seeming implausible option that one of the Dakota challenges would have both federal case and a 8th circuit appeal heard (and ending pro-gay marriage) before Utah can (presuming the SCOTUS is inclined to buy time) have the SCOTUS decline cert as premature and have the en banc hearing option get run through.

    They may kick the Utah can to buy a few months, or perhaps in hope one of the other circuit rulings gets to the SCOTUS first, but it would take a miracle to eliminate the existing circuit split before the SCOTUS has to take a look at it.