The Mad Professah Lectures

Well! In a somewhat surprising move, the United States Court of Appeals for the Sixth Circuit has reversed multiple lower court rulings in favor of marriage equality and issued a 2-1 decision upholding the rights of Kentucky, Michigan, Ohio and Tennessee to enforce laws that restrict marriage to one man and one woman.

The 2-1 decision is contrary to decisions in the 9th, 10th, 4th and 7th Circuits which all favored marriage equality and which the Supreme Court declined to review last month, effectively granting marriage equality to go into effect in 30-plus states. Today's decision means that it is much more likely now that the United States Supreme Court will have to step in and give  a final resolution of the marriage equality question once and for all, probably by June 2015.

The two judges appointed by President Gerge W. Bush voted to uphold the marriage bans using the argument that judges should not be deciding such a question which could (and should) be sresolved by the Democratic process while the judge appointed by President Clinton voiced a fierce dissent to such an idea:

If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams. 

[...] 

Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.

It will be interesting to see how quickly the U.S. Supreme Court responds to today's actions by the 6th Circuit. Ruth Bader Ginsburg predicted that the Court would not feel inclined to get involved unless and until a Circuit split developed, and that is exactly what happened today.

Ptersident Barack Obama gave an interview with The New Yorker where he expresses his belief explicitly that the United States Constitution's Equal Protection clause guarantees marriage equality for same-sex couples.

This excerpt from his conversation with Jeffrey Toobin is today's Queer Quote:

“Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states. But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.”

Obama also named the decision by the U.S. Supreme Court to refuse to hear appeals from three appellate circuits on Monday October 6th and effectively causing marriage equality to go into effect in roughly 35 states as the "the best Supreme Court decision of his tenure."

“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done. Because I think it really signals that although the Court was not quite ready—it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.”

Elections have consequences, people!

We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.

Today's ruling from the 9th Circuit was the fourth appellate court to rule in favor of marriage equality this year in the last three months and was a unanimous 3-0. Somewhat surprisingly, a mandate from the court has already been issued, putting it into effect, which should allow couples to immediately get married in Nevada and Idaho if no appeals are filed. The Governor of Nevada has agreed not to appeal so marriage equality has gone into effect in the Silver State. Couples will be able to get marriage licenses in Las Vegas starting at 2pm on Wednesday.

An interesting feature of the 9th Circuit's ruling is that although it was unanimous two of the judges wrote separately to say that they would have struck down the marriage bans on other grounds. Judge Stephen Reinhard said that he would have used the Due Process Clause to say that the bans violate the fundamental right to marry of same-sex couples and Judge Marsha Berzon wrote to sat that she would have used the idea that bans on marriage equality are based in unconstitutional sex discrimination. Sadly, neither judge signed on to the other's separate ruling so neither of these ideas have the force of law in the 9th Circuit, although I would agree with BOTH of them.

Wow! The Supreme Court today surprised almost all legal observers by refusing to hear ("called denying certiorari") appeals from five states of decisions in three federal appellate circuits that said that bans on marriage equality violated the federal constitution. The nearly immediate effect of the Supreme Court action means that the fight for marriage equality in those states (Oklahoma, Indiana, Utah, Wisconsin and Virginia) is over. Once final orders are issued from the corresponding U.S. appellate circuits (which usually takes a month) same-sex couples will be able to get married in those states. Effectively, it means that as of today there are now 24 states that "have" marriage equality.

Very soon after those orders go into effect the number of states with marriage equality will include the other six states within the 4th, 7th and 10th circuits covered by the previously issued rulings in those marriage equality cases: Colorado, Kansas, Wyoming, North Carolina, South Carolina, and West Virginia.

Evan Wolfson Founder and President of Freedom to Marry issued the following statement:

Today’s decision by the Supreme Court leaves in force five favorable marriage rulings reached in three federal appellate courts, ensuring the freedom to marry for millions more Americans around the country. The Court’s letting stand these victories means that gay couples will soon share in the freedom to marry in 30 states, representing 60% of the American people. But we are one country, with one Constitution, and the Court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places. As waves of freedom to marry litigation continue to surge, we will continue to press the urgency and make the case that America – all of America -- is ready for the freedom to marry, and the Supreme Court should finish the job.

I wonder if this surprising result is an example of the Posner effect, i.e. Judge Richard Posner's evisceration of the arguments against marriage equality in oral arguments and then eloquently in his written decision (upheld today by the Supreme Court) overturning Indiana's and Wisconsin's bans on marriage equality.

Woo hoo!

Supreme Court Justice Ruth Bader Ginsburg gave some hints at apublic forum recently about how the U.S. Supreme Court may deal with the pending petitions from the 4th, 7th and 10th U.S. Circuits to resolve the question of marriage equality: Look to the 6th Circuit!

Generally, the Supreme Court resolves splits between the Circuits. If the 6th Circuit rules, like all other appellate courts that have reviewed state bans on marriage equality in the last year and  a half that these laws violate the federal constitution then there would be no split to resolve and even though it's an important question, Justice Ginsburg said the Court would feel no urgency to resolve the matter in an absence of a circuit split.

The comments Justice Ginsburg gave  at the University of Minnesota are today's Queer Quote:

Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted. 

She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”

The Sixth Circuit has heard oral arguments and observes say it could be a 2-1 decision either way. The losing side could then appeal to the full 6th Circuit which has  a majority of judges appointed by Republican presidents. If Justice Ginsburg is right and the Court will wait until the 6th Circuit finally rules, then it is possible after all for marriage equality not to be decided nationwide in the 2014-15 term.

There are now seven(!) marriage equality cases from four different states pending before the United States Supreme Court. On September 29th the Court will likely consider how to dispose of thousands of writs of certiorari that include appeals from the 10th Circuit (Utah and Oklahoma), the 4th Circuit (Virginia) and the 7th Circuit (Indiana and Wisconsin). There currently is no circuit split, because every appellate court decision released since last year's landmark United States v Windsor decision has resulted in a win for the cause of marriage equality.

The 9th Circuit heard oral arguments in two cases on Monday (from Nevada and Idaho) and the 6th Circuit has already heard oral arguments earlier this summer and a decision from either court could be issued at any time. It is thought likely that the Supreme Court may hold over deciding any of the pending certs until the 6th and or 9th circuits release their decisions.

However, regardless it is unlikely the Court will be able to escape resolving the fundamental question of whether marriage equality is part of the United States constitution beyond the end of the 2014-15 term which ends in June.

Less than two weeks after hearing oral arguments in the marriage equality cases involving Indiana and Wisconsin a 3-judge panel of the 7th U.S. Circuit unanimously upheld the lower court rulings in Wolf v. Walker (Wisconsin) and Baskin v. Bogan (Indiana), in a scathing opinion written by Judge Richard Posner striking down state marriage bans as violating the federal constitution. The 7th becomes the third federal appellate court, after the 10th in Denver, CO (June 25 and July 18)and the 4th in Richmond, VA (July 28)  to rule in favor of marriage equality this year.

Today's Queer Quote comes from Tuesday's oral arguments before the 7th U.S. Circuit Court of Appeals in marriage equality cases from Wisconsin (Wolf v. Walker) and Indiana (Baskin v. Bogan) where the three judge panel, which included the eminent jurist Richard Posner, completely demolished the states' arguments for their bans on marriage equality.

Posmer is a conservative judge and the intellectual lodestar of a form of jurisprudence that combines economics and conservative legal principles. He does not countenance fools lightly, and he savaged the lawyers making post hoc arguments to defend their states' marriage bans (when everyone knows that it was animus against gender-variant behavior that is at the root of these laws).

These excerpts, provided by Professor Josh Blackman, are today's Queer Quote:

Posner: What concrete factual arguments do you have against homosexual marriage?
Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.
Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage] . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?Samuelson: The tradition is based on experience. And it’s the tradition of western culture.
Posner: What experience! It’s based on hate, isn’t it?Samuelson: No, not at all, your honor.
Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?

Ouch! But, wait, there's more!

• “These people and their adopted children are harmed by your law,” Judge Richard Posner said of gay and lesbian couples who are barred from getting married. “The question is what is the offsetting benefit of your law. Who is being helped?”

• Wisconsin Assistant Attorney General Timothy Samuelson responded that society as a whole benefited by preserving marriage as it has long been defined. Posner pressed on, asking if anyone would be harmed if same-sex couples were allowed to be married.

• But Posner expressed skepticism of the idea that the states were trying to promote procreation. “You allow all these sterile couples to get married,” he said. “Why are you doing that if you’re so interested in procreation?”

• Posner, who at times appeared to lecture the attorneys defending the bans, focused on the ability of same-sex couples to adopt children. He noted adopted children would benefit if their parents could claim the tax breaks and other perks of being married.

• “These children would be better off if their parents could marry, no? It’s obvious,” Posner said.

• “Why do you prefer heterosexual adoption to homosexual adoption?” Judge Posner, appointed to the bench by President Reagan, asked. When Fisher began responding that the marriage laws were unrelated to adoption, Posner was almost vitriolic in his response, saying of the state’s treatment of the children of same-sex couples, “You want them to be worse off.”

• At different times, Posner referred to Fisher’s arguments as “pathetic,” “ridiculous,” and “absurd.”

• “How can tradition be the reason?” he asked, mocking the answer by responding that saying “we’ve been doing a stupid thing” for a long time certainly wouldn’t be enough of a justification to uphold a law or practice.

 And this basically encapsulates why so many federal judges are ruling against state bans on marriage equality. There's no benefit to heterosexuals and there is clearly defined harm to same-sex couples (and their children).

Posner is described as the most cited legal theorist of the 20th century. Most observers expect a unanimous ruling from the 7th circuit upholding the lower court's judgments that state bans on marriage equality are unconstitutional under the federal constitution.

The 7th U.S. Circuit has announced the date of the oral arguments in marriage equality cases for Indiana and Wisconsin. On June 25th, Indiana's ban on same-sex marriage as struck down by a  judge and the 7th Circuit Court of Appeals later issued a stay on the judge's ruling (when the judge refused to). Similarly, in Wisconsin a federal judge struck down the same-sex marriage ban on June 7 but the judge later stayed her own ruling.

Now comes word that a 3-judge panel of the 7th Circuit will hear oral arguments before the end of the summer:

The 7th U.S. Circuit Court of Appeals announced Friday on its online docket that it has rescheduled oral arguments for both states' appeals of federal court decisions for Aug. 26. 

Federal judges in Indiana and Wisconsin overturned each state's gay marriage ban in separate rulings. When both states appealed, the 7th Circuit Court combined the cases and set aside the previous hearing date. 

The 7th Circuit also denied requests that the states' appeals be heard before the full 10-member court instead of a three-judge panel, as is customary.

hat/tip to Joe Jervis

The 7th U.S. Circuit Court of Appeals has granted Indiana Attorney General Greg Zoeller's request for a stay of Wednesday's district court ruling that had brought marriage equality to the Hoosier State. The action means that the number of states where same-sex couples can get legally married returns to 19. In the most recent cases, federal judges have not issued stays on their ruling but thanks to the Supreme Court precedent in the Utah case of Kitchen v Herbert where the High Court did issue a stay in the lower court ruling from going into effect during the appeals process, many judges are placing stays on their orders after a brief period in which couples can get married. This happened in Wisconsin just a few weeks ago.

That being said, the states of Indiana, Oklahoma, Idaho, Utah, Wisconsin, Virginia, Texas, Arkansas and Kansas all have had their bans on marriage equality struck down and those ruling are not going into effect due to judicially ordered stays. If the Supreme Court upholds or decides not to rule on the pending appellate cases that are in our favor, there's gonna be a whole bunch of jurisdictions where same-sex couples can suddenly get married when those stays are suddenly dissolved!

Already some jurisdictions are using the fact that the 10th U.S. Circuit has ruled in favor of marriage equality to issue marriage licenses even though that appellate ruling is officially stayed pending appeal.

Hat/tip to Joe Jervis