Justice Anthony Kennedy. | UNITED STATES SUPREME COURT
The day after the US Supreme Court refused to review pro-marriage equality rulings from three federal courts of appeals in cases from five states, another circuit was heard from.
A unanimous three-judge panel of the San Francisco-based Ninth Circuit Court of Appeals, on October 7, ruled in favor of marriage equality in cases from Nevada and Idaho.
Writing for the panel, Circuit Judge Stephen Reinhardt, who was appointed to the court by Jimmy Carter, found that the marriage bans fail to meet the heightened scrutiny standard the Ninth Circuit applies in cases of sexual orientation discrimination claims.
Later in the day the court exercised its discretion to issue its mandate to the two district courts, declaring its decision immediately effective. Appellate courts more typically give the losing party a brief window of time to request a rehearing.
On October 8, however, Supreme Court Justice Anthony Kennedy, who hears petitions regarding cases from the Ninth Circuit, stepped in with a temporary stay so the high court could consider whether the State of Idaho should be allowed time to pursue an appeal.
In Nevada, officials quickly fell into line with the Ninth Circuit ruling. Governor Brian Sandoval, a Republican, had earlier this year concluded that the Nevada marriage ban was no longer defensible, so the state did not argue on its behalf before the Court of Appeals, leaving its defense to an intervening anti-marriage-equality group called the Coalition for the Protection of Marriage. That group signed up Monte Neil Stewart, the attorney representing the State of Idaho, to also argue its case. Despite the fact that the Coalition stepped in when the State of Nevada backed down from defense of its marriage ban, it does not have legal authority under state law to further appeal the case.
Idaho was a different story, however. There, Governor Butch Otter, also a Republican, authorized attorney Gene Schaerr, a Washington-based Supreme Court litigator, to file an emergency application for a stay pending appeal with the Ninth Circuit and with the Supreme Court. Otter’s Supreme Court application was filed in the morning on October 8, and Kennedy quickly granted a temporary stay. The same-sex marriage plaintiffs have until 5 p.m. on October 9 to respond, and he is expected to then refer the application to the full court.
Schaerr’s application said that Idaho would seek Supreme Court review and raised two questions specifically focused on the Ninth Circuit’s ruling –– whether heightened scrutiny, a rigorous standard of judicial review, is appropriate in sexual orientation cases and whether bans on same-sex marriage are in fact sexual orientation discrimination. Schaerr’s application suggested the high court could address both of these questions even without rendering a final decision on whether same-sex couples have a right to marry. If the Ninth Circuit erred on either point, he argued, the Supreme Court could send the case back to the Ninth Circuit for reconsideration. That would kick the can down the road substantially, putting off a final decision in Idaho for a year or more.
The Supreme Court, however, may resolve this issue quickly, given that it has just denied review of the other appellate rulings. The most widespread interpretation of the high court’s unexplained dismissals was that its four members clearly opposed to same-sex marriage would not hear the cases for fear Kennedy would join with other marriage equality supporters to establish a nationwide precedent and that the four more liberal justices, disposed favorably toward marriage equality, saw no urgency in addressing the issue as long as appeals courts were ruling in favor of marriage equality.
Based on that reading, it seems likely the court would deny Idaho its stay unless a majority are taken with Schaerr’s argument that the court should address the split among the circuits over the standard for evaluating sexual orientation discrimination claims. The other three circuits ruled against the marriage bans without applying heightened scrutiny in an equal protection context.
“We hold,” wrote Reinhardt for the Ninth Circuit panel, “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.”
The Ninth Circuit’s use of heightened scrutiny dates only to this past January, in litigation between SmithKline and Abbott Laboratories, where the appeals court found that a person could not be struck from a jury just because they are lesbian or gay. In reaching that decision, the court concluded that last year’s ruling in the Defense of Marriage Act case effectively applied heightened scrutiny by placing the burden on the federal government to justify unequal treatment of legal same-sex marriages. Accordingly, in the Ninth Circuit’s view, the Supreme Court had implicitly established the precedent.
Reinhardt found that Nevada and Idaho had failed to meet the demanding requirements of heightened scrutiny review, but did not offer a view on whether the marriage bans met the more customary and lenient standard of exhibiting at least some rational basis. About the closest he came in this regard was to say that “defendants have failed to demonstrate that these laws further any legitimate purpose,” so “they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”
The appeals panel affirmed the recent marriage equality ruling from the district court in Idaho and reversed a 2012 ruling that upheld the ban in Nevada, sending that case back to the lower court “for the prompt issuance of an injunction” against its enforcement.
The panel’s other two judges joined Reinhardt’s opinion, but one of them, Clinton-appointee Marsha Berzon, wrote a concurring opinion, arguing that the case could alternatively be decided as a sex discrimination case. She focused her analysis on a point only briefly mentioned by Reinhart –– that the argument advanced by Stewart in defending the Idaho and Nevada laws relied heavily on stereotypes about the roles of men and women when it comes to raising children. In sex discrimination cases, the Supreme Court has sharply rejected any policy based in gender stereotypes.
Reinhardt himself also wrote a separate concurring opinion, adding his view that this case also involved the fundamental constitutional right to marry. The Supreme Court applies strict scrutiny in a due process analysis of cases where a law is alleged to abridge a fundamental right, which are seen as those deeply embedded in the nation’s history and tradition. Opponents of marriage equality argue that since same-sex marriage is a very new phenomenon, it cannot be considered a fundamental right, but Reinhardt agreed with the plaintiffs that this argument frames the fundamental rights question too narrowly. He concluded the right to marry recognized by the Supreme Court broadly encompasses the choice of marital partner and is not narrowly focused on different-sex couples.
Since neither concurring opinion won agreement from a second judge, the panel’s decision is based solely on sexual orientation discrimination.
The Ninth Circuit’s conclusion that last year’s DOMA case established a heightened scrutiny precedent has not been tested at the Supreme Court, and as Schaerr argued in his application to the high court, a good number of the circuits have specifically embraced the more deferential rational basis standard, which imposes a lighter burden on the state in defending its laws. The New York-based Second Circuit adopted heightened scrutiny in its ruling for Edie Windsor in her DOMA challenge, but when the Supreme Court affirmed that decision in June 2013, it did not specifically endorse the Second Circuit on that point.
As a result, even though it might seem far-fetched –– given the court’s actions earlier this week –– that Idaho could win a longer stay pending appeal and perhaps a grant of Supreme Court review, there’s an outside chance Schaerr’s strategy will pay off, intriguing enough justices to convince them to delay implementation of this ruling while they decide whether to take the case.
In addition to Stewart, the attorneys in the Ninth Circuit case were Lambda Legal’s Tara Borelli, representing the Nevada plaintiffs, and Deborah Ferguson, a Boise attorney, representing those in Idaho.
Meanwhile, the Supreme Court’s “decision not to decide” on October 6 and the Ninth Circuit’s ruling the following day are having immediate effects. Even though Colorado Attorney General John Suthers, a Republican, had appealed a district court marriage equality ruling from this summer, when the 10th Circuit’s ruling in the Utah and Oklahoma was allowed to stand, he concluded his state, also under the jurisdiction of the 10th Circuit, would have to follow suit. Marriage licenses are being issued there.
In the remaining two 10th Circuit states –– Wyoming and Kansas –– Republican governors continue to talk tough, refusing to throw in the towel. Plaintiffs litigating the issue there will have to seek district court action to force compliance with the precedent now binding throughout the circuit.
In the Seventh Circuit, Republican Governor Scott Walker, who had battled the marriage equality ruling in his state, acknowledged, “For us, it’s over in Wisconsin,” and in Indiana, clerks began issuing marriage licenses.
Responding to the Fourth Circuit’s marriage equality ruling, which he had supported all along, Virginia’s Democratic governor, Terry McAuliffe, issued an executive order on October 7 directing that “all entities in the executive branch, including agencies, authorities, commissions, departments, and all institutions of higher education further evaluate all policies and take all necessary and appropriate legal measures to comply.” Attorney General Mark Herring, also a Democrat, officiated at the marriage of Carol Schall and Mary Townley, plaintiffs in the case there, just hours after the Supreme Court’s decision was announced.
Elsewhere in the Fourth Circuit, federal trial judges asked the parties in pending lawsuits in West Virginia, North Carolina, and South Carolina to file papers giving their positions on how the cases should proceed. In North Carolina, the attorney general, Democrat Roy Cooper, has already indicated he will no longer defend that state’s ban. In South Carolina, even as Republican Attorney General Alan Wilson, backed by GOP Governor Nikki Haley, made brave noises about soldiering on with the defense, at least one county probate judge began issuing marriage licenses on October 7. West Virginia officials were studying the legal issues before them in the wake of the Supreme Court announcement.
In the Ninth Circuit, there are federal marriage equality cases pending in Arizona, Alaska, and Montana, and unless the Supreme Court decides to keep a stay on the panel’s ruling, it seems likely those will also proceed to summary judgments for the plaintiffs quickly.
Still to be heard from are the Sixth Circuit, where arguments on appeals from pro-equality rulings in Ohio, Michigan, Tennessee, and Kentucky were heard early in August, and the Fifth and 11th Circuits, where appeals from Louisiana, Texas, and Florida are pending but arguments haven’t been scheduled yet.