SAME-SEX MARRIAGE VICTORYDemystifying the Legal Landscape

Raga Gopalakrishnan

Oct. 12,2014

Outline of this presentation• A (very limited) “crash course” in law and the courts for the layperson• Hierarchy of law and hierarchy of courts• Due process and equal protection principles in the US Constitution• Suspect classes and levels of scrutiny

• Major arguments for and against same-sex marriage• Timeline of marriage cases• PAST: Major marriage-related cases• PRESENT: What happened this past week• FUTURE: What’s next?

• Q&A

This presentation does not provide...

• Any legal advice (I’m not a lawyer anyway!)• Information on Colorado’s civil union laws and marriage laws, e.g.,• whether a civil union can be converted into a marriage• whether a dissolution of a civil union can be converted into a divorce

• Information on administrative procedures to obtain marriage licenses

Hierarchy of Law• Supremacy Clause of Article VI of the US Constitution:

• “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The Federalism Principle• Amendment X to the US Constitution:

• “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Hierarchy of Authority – Courts

Parallel Court System Rules• Federal courts must defer to a state court’s authority in interpreting state law when it

becomes necessary to do so as part of a federal case.• State courts can decide questions of federal law independently of federal courts, with

one exception – the US Supreme Court binds all lower courts (state and federal) on questions of federal law.• Binding Precedent

• Within each system of courts (federal and state), higher courts bind lower courts.• Within each court, judges are bound by earlier decisions of the same court, unless:

• a higher court has since decided the same or a substantially similar issue.• the court is a (State or US) Supreme Court, which is free to review and reverse its past decisions.• the court is a federal court of appeals sitting “en banc”.

• Persuasive Precedent• Non-binding precedent or other legal writing that provides useful or relevant guidance.• Examples include decisions by lower courts, by peer or higher courts from other geographic

jurisdictions, by courts in parallel systems.

US Constitution – Equal Protection

(The US Supreme Court in 1954, read an equal protection component into the Due Process Clause of

the Fifth Amendment to the US Constitution.)

Equal Protection – Suspect Classification• A suspect classification is any classification of groups meeting a series of criteria

suggesting they are likely the subject of discrimination:• The group has historically been discriminated against.• The group's distinguishing characteristic does not affect their ability to contribute

meaningfully to society.• The group’s distinguishing characteristic is “immutable”.• They are politically powerless.

• Race, national origin, religion are suspect classes.• Gender/Sex and illegitimacy are “quasi-suspect” classes.• What about sexual orientation?• Courts subject discriminatory laws to

• “strict scrutiny” when a suspect class is involved.• “intermediate or heightened scrutiny” when a quasi-suspect class is involved.• “rational basis review” when neither is involved.

less important

Equal Protection – Levels of Scrutiny

burden on Plaintiffs burden on State

Equal Protection – Levels of Scrutiny

US Constitution – Due Process

Substantive Due Process

Timeline of Important Marriage-Related Cases• Jun. 1967 – Loving v. Virginia• US Supreme Court reverses the Virginia Supreme Court, unanimously declaring that

Virginia’s ban on interracial marriage unconstitutional.

• Oct. 1972 – Baker v. Nelson• US Supreme Court summarily dismisses an appeal out of the Minnesota Supreme

Court. The order, in its entirety, is 11 words long: “The appeal is dismissed for want of a substantial federal question.”

• Jun. 1986 – Bowers v. Hardwick• US Supreme Court reverses the Eleventh Circuit Court of Appeals in a 5-4 ruling,

declaring that Georgia’s sodomy law did not violate the US Constitution.

Timeline of Important Marriage-Related Cases• 1993-1999 – Baehr v. Miike

• Hawaii Supreme Court rules that under the Hawaii Constitution's equal protection clause, denying marriage licenses to same-sex couples constituted discrimination based on sex, directing the lower court to apply strict scrutiny.

• In response, Hawaii enacted a statute defining marriage as between a man and a woman.• Spooked by the ruling, in Sep. 1996, Congress enacted the Defense of Marriage Act.• In Dec. 1996, the lower court concluded that the statute could not withstand strict scrutiny,

but stayed its decision pending an appeal to the Hawaii Supreme Court.• In 1998, Hawaii voters amended the Hawaii Constitution to add: “The legislature shall have

the power to reserve marriage to opposite-sex couples.”• In 1999, the Hawaii Supreme Court, bound by the new Hawaii Constitutional Amendment,

reversed the lower court ruling.

Timeline of Important Marriage-Related Cases• May 1996 – Romer v. Evans• US Supreme Court affirms the Colorado Supreme Court in a 6-3 decision, declaring

that Colorado’s constitutional amendment – preventing the enactment of anti-discrimination laws based on sexual orientation – was in violation of the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. Justice Anthony Kennedy wrote for the majority.

• Jun. 2003 – Lawrence v. Texas• US Supreme Court reverses the Texas Court of Criminal Appeals in a 6-3 decision,

declaring that Texas’s sodomy law was in violation of the (substantive) Due Process Clause of the Fourteenth Amendment to the US Constitution. Justice Anthony Kennedy wrote for the majority.• This decision explicitly overruled the 1986 decision in Bowers v. Hardwick.

Timeline of Important Marriage-Related Cases• Nov. 2003 – Goodridge v. Department of Public Health

• Massachusetts Supreme Court rules that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution,” and gave the State Legislature 180 days to take appropriate action.

• In Dec. 2003, the State Senate asked the Massachusetts Supreme Court if civil unions would suffice. In Feb. 2004, the Massachusetts Supreme Court said that civil unions would not suffice: “The dissimilitude between the terms 'civil marriage' and 'civil union' is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status. For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain.”

• The State Legislature took no further action, and in May 2004, Massachusetts began issuing licenses to same-sex couples.

• This triggered 26 state constitutional bans on same-sex marriage between 2004-2008.

Timeline of Important Marriage-Related Cases• Jul. 2006 – Citizens for Equal Protection v. Bruning

• Eighth Circuit Court of Appeals rules that Nebraska’s constitutional amendment banning same-sex marriage does not violate the US Constitution.

• Oct. 2006 – Lewis v. Harris• New Jersey Supreme Court rules that same-sex couples are entitled to the same equal

protection as heterosexual couples under the New Jersey Constitution, but allowed for civil unions as a valid remedy.

• May 2008 – In Re: Marriage Cases• California Supreme Court rules that the statutory ban on same-sex marriage violates the

California Constitution.• In Nov. 2008, the California Constitution was amended to ban same-sex marriage (Prop 8).• In May 2009, the California Supreme Court ruled in Strauss v. Horton that Prop 8 was valid

as voted.

Timeline of Important Marriage-Related Cases• Oct. 2008 – Kerrigan v. Commissioner of Public Health• Connecticut Supreme Court rules that denying same-sex couples the right to marry,

even granted them a parallel status under another name like civil unions, violates the Connecticut Constitution.

• Apr. 2009 – Varnum v. Brien• Iowa Supreme Court rules that the limitation of marriage to opposite-sex couples

violates the Iowa Constitution.

• Aug. 2010 – Perry v. Schwarzenegger• Federal District Court Judge Walker rules that California’s constitutional amendment

banning same-sex marriage (Prop 8) violates the US Constitution.• The State of California did not appeal the ruling, but the proponents of Prop 8, who had

intervened at the district court, appealed to the Ninth Circuit Court of Appeals.

Timeline of Important Marriage-Related Cases• Jun. 2013 – Hollingsworth v. Perry• US Supreme Court, in a 5-4 decision, rules that the proponents of California’s Prop 8

should not have been allowed to appeal an adverse federal court ruling when the state refused to do so. This decision effectively let stand Judge Walker’s ruling that declared that Prop 8 violates the US Constitution. Chief Justice John Roberts wrote for the majority.

• Jun. 2013 – United States v. Windsor• US Supreme Court affirms the Second Circuit Court of Appeals in a 5-4 decision,

declaring that Section 3 of DOMA violates the Fifth Amendment of the US Constitution. Justice Anthony Kennedy wrote for the majority.• Justice Kennedy wrote that the regulation of domestic relations is traditionally a state function,

and the federal law’s intrusion into that function was so unusual that its principle purpose was to impose inequality on state-sanctioned same-sex marriages.

Same-sex marriage bans are unconstitutional

• Legal theories in support:• Denial of the fundamental right to marriage triggers strict scrutiny, which the bans

cannot withstand.• The bans discriminate on the basis of sexual orientation.

• Sexual orientation should be a quasi-suspect class triggering heightened scrutiny, which the bans cannot withstand.

• In the alternative, the bans do not even withstand rational basis review.• The bans discriminate on the basis of sex, triggering intermediate scrutiny, which

the bans cannot withstand.

Same-sex marriage bans are unconstitutional

• Legal theories in opposition:• The bans do not deny the fundamental right to marriage, because marriage is, and has

always been, the union of one man and one woman. If anything, they only deny the “right to same-sex marriage”, which is not a fundamental right.• In the alternative, the bans survive strict scrutiny.

• The bans do not classify, let alone discriminate, on the basis of sexual orientation.• In the alternative, laws discriminating on the basis of sexual orientation are only subject to rational

basis review, which the bans withstand.• In the alternative, the bans survive heightened scrutiny.

• The bans do classify on the basis of sex, but are not discriminatory, because they apply equally to men and women.• In the alternative, the bans survive intermediate scrutiny.

Baker v. Nelson(US Supreme Court, 1972)

Same-sex marriage bans are unconstitutional

• State interests advanced in support of marriage bans:• Children need a mom and a dad (kids in opposite-sex households fare better than

those in same-sex households)• Responsible procreation (marriage solves unintended children problem)• Slippery slope• Tradition• Proceeding with caution• Democracy (people should decide, not courts)• Undermining the marriage institution

Judge Richard Posner,Seventh Circuit Court of Appeals

http://www.slate.com/blogs/outward/2014/08/27/listen_to_judge_richard_posner_destroy_arguments_against_gay_marriage.html

Timeline of Important Marriage-Related Cases• Sep. 2013 – New Jersey (State Superior Court)• Dec. 2013 – New Mexico (State Supreme Court) | Utah, Ohio-1 (Federal District Courts)• Jan. 2014 – Oklahoma (Federal District Court)• Feb. 2014 – Kentucky-1, Virginia, Texas-1 (Federal District Courts)• Mar. 2014 – Michigan, Tennessee-1 (Federal District Courts)• Apr. 2014 – Ohio-2 (Federal District Court) | Texas-2 (State District Court)• May 2014 – Arkansas (State Circuit Court) | Idaho, Oregon, Pennsylvania (Federal District Courts)• Jun. 2014 – Wisconsin, Indiana-1 (Federal District Courts) | Utah (Tenth Circuit Court of Appeals)• Jul. 2014 – Oklahoma (Tenth Circuit Court of Appeals) | Virginia (Fourth Circuit Court of Appeals)• Jul. 2014 – Colorado-1, Florida-1,2 (State Courts) | Colorado-2, Kentucky-2 (Federal District Courts)• Aug. 2014 – Florida-3,4, Tennessee-2 (State Circuit Courts) | Indiana-2, Florida-5 (Federal District Courts)• Sep. 2014 – Louisiana (Federal District Court) | Wisconsin, Indiana (Seventh Circuit Court of Appeals)• Oct. 2014 – Missouri (State Circuit Court)

Timeline of Important Marriage-Related Cases• Monday, October 6, 2014

• US Supreme Court refuses to review appeals of five states from the Fourth (VA), Seventh (WI, IN), and Tenth Circuit (UT, OK) Courts of Appeals.• Same-sex marriage is legalized instantly in these five states, bringing the total to 24.• The three federal appeals courts have jurisdiction over six more states where same-sex marriage is prohibited

(WV, NC, SC, CO, KS, WY) and their ruling binds federal courts in these states.• Colorado’s Attorney General concedes defeat.

• Tuesday, October 7, 2014• Legal hurdles are cleared in CO, leading to it becoming the 25th state.• The Ninth Circuit Court of Appeals rules that same-sex marriage bans violate the US

Constitution, upholding the ID district court and reversing the NV district court.• The issuance of the judgment by the Ninth Circuit late Tuesday evening automatically dissolved

its previous stay of marriages in ID. Marriages are set to begin 8am Wednesday.

Timeline of Important Marriage-Related Cases• Wednesday, October 8, 2014

• Early am, Idaho asks Justice Kennedy for an emergency stay of the Ninth Circuit’s judgment.• At 7:50am, Justice Kennedy temporarily blocks the Ninth Circuit’s judgment from taking effect in ID to allow

time for the US Supreme Court to consider Idaho’s application.• The Ninth Circuit reacts by recalling the portion of the judgment that pertains to ID.

• Thursday, October 9, 2014• WV’s Governor and Attorney General concede defeat and order that the issuance of marriage licenses begin

immediately. WV thus becomes the 26th state.• The SC Supreme Court blocks state probate courts from issuing marriage licenses until a federal court resolves a

case currently before it.• The NV district court issues an injunction as ordered by the Ninth Circuit, and NV becomes the 27 th state.

• Friday, October 10, 2014• US Supreme Court denies Idaho’s application for a stay.• NC becomes the 28th state as a federal district court there declared its ban unconstitutional.• The KS Supreme Court blocks issuance of marriage licenses while it considers the effect of the Tenth Circuit’s

ruling. A hearing is scheduled for Nov. 6.• Plaintiffs in the ID case have asked the Ninth Circuit to lift its previous stay which went back into effect when it

recalled the judgment. ID is poised to become the 29th state next week.

What’s next?• Same-sex marriage will, in the coming days, become legal in a total of 35

states, as a result of this past week’s actions by the US Supreme Court and the Ninth Circuit Court of Appeals.• ID, AK, AZ, WY will probably be the quickest, perhaps by the end of this week.• MT, KS, SC will be slower to follow suit.

• The Sixth Circuit Court of Appeals heard oral arguments in appeals from MI, OH, KY, TN two months ago. A decision is expected any day now.• If the court affirms the lower courts in declaring the marriage bans unconstitutional,

the tally will jump to 39.

What’s next?• The Fifth Circuit Court of Appeals is currently considering appeals from two states (TX,

LA). Briefing is complete in the TX appeal, and will be complete early November in the LA appeal. The court recently agreed to expedite oral argument in these appeals. A decision could come down by early 2015.• This court is widely expected to buck the trend and uphold the state bans.

• Briefing will be complete in an appeal at the AR Supreme Court. A decision could come down by early 2015.• The Eleventh Circuit Court of Appeals has before it an appeal out of a federal district

court in Florida. However, it is still in early stages, and it seems unlikely that a decision would come out by Summer 2015.

When will the US Supreme Court step in?• The US Supreme Court has broad discretion over which cases it may review.• An important criterion is whether there is a “circuit-split”, that is, do the

courts of appeals disagree on the issue, or whether a court of appeals and a state supreme court disagree on the issue.• Since the US Supreme Court ruled DOMA unconstitutional in June 2013, all

appellate courts and state supreme courts to have considered the constitutionality of state marriage bans are in agreement that they are unconstitutional.• Should the Sixth Circuit or Fifth Circuit disagree, that could force the US

Supreme Court to step in and hand down a nationwide ruling.• If an adverse Sixth Circuit ruling comes down soon, there might still be time for the

US Supreme Court to take up a marriage case and decide it by June 2015.

What will the US Supreme Court do?• It seems unlikely that the US Supreme Court, if and when it does take up a

marriage case in the future, will uphold the constitutionality of state bans on same-sex marriage, after allowing marriages to proceed in several states this past week.• If that happens, then the states whose marriage bans are still on the books could file

fresh lawsuits seeking to resume enforcement of those bans.• Thus, it is important to continue the effort to repeal state constitutional

amendments at the ballot.

• If the composition of the Court doesn’t change, it seems likely that the US Supreme Court, if and when it takes up a case, will declare state bans on same-sex marriage unconstitutional.

Beyond Marriage• Workplace discrimination based on sexual orientation and gender identity/expression.

• LGBT conversion therapy for minors.• Third and Ninth Circuits have already ruled recently that California’s and New Jersey’s laws banning

conversion therapy for minors are constitutional.

Questions?

Thank you!

Acknowledgements• Rainbow-themed background: free-power-point-templates.com• Pictures obtained through Google Image Search from these websites:

• civiceducationva.org• 2012books.lardbucket.org• catalog.flatworldknowledge.com• nationalparalegal.edu• wikipedia.org• theerisalawgroup.com

• Freedom To Marry website helped me a lot in putting together the timeline section: freedomtomarry.org/pages/history-and-timeline-of-marriage• Wikipedia and Google websites helped me get information on a lot of cases.