August 07, 2014 Articles

Challenges to Same-Sex Marriage Bans Succeeding

By Mark T. Hamby

In a continuing trend in favor of challengers to same-sex marriage bans, Judge Barbara Crabb of the Western District of Wisconsin struck down that state's ban on same-sex marriage. Judge Crabb issued an 88-page opinion on June 6, 2014, holding that "plaintiffs are entitled to the same treatment as any heterosexual couple" and that "Wisconsin laws banning marriage between same-sex couples are unconstitutional." Wolf v. Walker, No. 3:14-cv-00064, 86 (W.D. Wis. June 6, 2014). Judge Crabb did not stay her decision pending an appeal. As a result, the court clerks in Milwaukee and Dane (Madison) Counties immediately began issuing marriage licenses with a majority of counties now following suit. The state filed an appeal and asked for a stay from the Seventh Circuit, which will determine whether it has jurisdiction over an appeal as a preliminary matter before it decides on whether to issue the stay.

On May 20, 2014, Judge John E Jones, III, of the District Court for the Middle District of Pennsylvania, ruled in Whitewood v. Wolf, No. 1:13-cv-01861, 2014 WL 2058105 (M.D. Penn. May 20, 2014) that Pennsylvania's Domestic Relations Code limiting marriage to opposite sex couples, regardless of where they were married, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The court permanently enjoined enforcement of the laws. Judge Jones stated: "We are a better people than what these laws represent, and it is time to discard them into the ash heap of history." Marriage licenses are being issued to same-sex couples in Pennsylvania.

One day before the Whitewood decision, Judge Michael McShane of the U.S. District Court for Oregon found the state's constitutional ban on same-sex marriages could not stand because it violated the Fourteenth Amendment rights of gays and lesbians. The court held that the civil unions law, enacted in 2007, did not adequately address the issue of equal protection of gays, lesbians, and their children living as families. See Geiger v. Kitzhaber, No. 6:13-cv-01834, 2014 U.S. Dist. LEXIS 68171 (D. Or. May 19, 2014). The decision effectively overrules Measure 36, a ban put in place in 2004 by voters during a wave of constitutional bans passed in many states. Oregon now joins many other states where bans have been outlawed in recent days.

These rulings do not appear to be anomalies. At this point it appears that the last state to either affirmatively enact legislation to recognize same-sex marriage or to have its legal ban on same-sex marriage ruled unconstitutional will be "it," the rotten egg.

Currently, all of the New England states— Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont—and as well as California, Delaware, Hawaii, Illinois, Iowa, Maryland, Minnesota, New Jersey, New Mexico, New York, Washington, and Washington, D.C., provide for same-sex marriages. In other states, judges have ruled that their respective state's prohibitions are unconstitutional. These rulings have been largely since the United States Supreme Court ruled against California's ban in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), and since the Supreme Court found the federal ban on recognition (the Defense of Marriage Act) unconstitutional in United States v. Windsor, 133 S. Ct. 2675 (2013).

Below are some of the more interesting cases on gay marriage. The Tenth Circuit heard oral argument on two cases in April—one from Utah (Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)), and one from Oklahoma (Bishop v. Holder, 962 F. Supp. 2d. 1252 (N.D. Okla. 2014)). These cases came out of two of the most conservative states in the country. In Kitchen, Judge Robert Shelby found Utah's ban unconstitutional. Because Judge Shelby did not stay his decision, approximately 1,308 marriage licenses were issued. The validity of the marriages performed between December 20 and January 4, 2014, when the Supreme Court issued a stay, was somewhat in doubt until May 19, 2014, when another federal judge in Utah ordered the state to recognize the marriages. Although New Mexico issued a similar ruling on December 19, 2014, in Griego v. Oliver, 316 P.3d 865 (N.M. 2013), that case was decided by the New Mexico Supreme Court based on New Mexico's Constitution and was not appealed.

Bishop was filed nine years ago and has been up on appeal once on standing and had proceeded slowly until Judge Terrence Kern of the Northern District ruled for the plaintiffs. Judge Kern found Oklahoma's ban on either performing or recognizing same-sex marriages unconstitutional. Bishop was filed in 2004 by private attorneys and in a prescient move, the plaintiffs also sought to have the Defense of Marriage Act ruled unconstitutional. Judge Kern issued his ruling on January 14, 2014, subject to a stay, therefore no marriage licenses have been issued in Oklahoma based on that ruling.

Marriages also have been performed in Arkansas, based on the May 9, 2014, ruling by Pulaski County District Court Judge Chris Piazza, who struck down the ban in Arkansas. Judge Piazza did not issue a stay and licenses were issued in several counties. The state is appealing the ruling and the Supreme Court of Arkansas did issue a stay after it initially denied one. See Smith v. Wright, cv-14-414 (Pulaski Cty. Cir. Ct. Ark.); initial appeal denied at Smith v. Wright, 2014 Ark. 222 (2014).

Marriages were also performed in Michigan following the March 21, 2014, decision in DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014). The case was filed by April DeBoer and her partner, who sought to jointly adopt each other's children but were denied the right to do so under Michigan law. Under Michigan law, they could adopt as single people but not jointly. Judge Bernard Friedman did not issue a stay, but the Sixth Circuit did following the state's request. Approximately 300 licenses were issued before the stay.

Other recent cases upholding the right of same-sex partners to marry include the Eastern District of Virginia's decision in Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014). Bostic was issued on Valentine's Day, overruling the Virginia ban, but subject to a stay, and argued to the Fourth Circuit on May 13, 2014. On February 26, 2014, the Western District of Texas issued its opinion in De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014), finding Texas's ban unconstitutional. DeLeon was issued subject to a stay and is being appealed in the Fifth Circuit. A district court in Idaho struck down a constitutional ban in a third case—Latta v. Otter, No. 1:13-cv-00482, 2014 WL 1909999 (D. Idaho May 13, 2014). Latta is stayed pending appeal to the Ninth Circuit along with a decision from Nevada, Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012).

The Nevada case is unique in that the federal court ruled against the plaintiffs who then appealed to the Ninth Circuit. Since the district court issued its opinion, however, the Nevada attorney general has withdrawn her support for the decision, making affirmation of the decision unlikely. The fact that civil unions are provided by statute under Nevada law was a factor in the district court's decision to sustain Nevada's ban on same-sex marriage. Sevcik, 911 F. Supp. 2dat1017–18.

There have also been federal court rulings in Ohio (Henry v. Himes, No. 1:14-cv-129, 2014 WL 1418395 (S.D. Ohio Apr. 16, 2014) (finding Ohio's ban on recognition of out-of-state same-sex marriages unconstitutional)); Kentucky (Bourke v. Beshear, No. 3:13-cv-750, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) (finding Kentucky's ban on recognition of out-of-state same-sex marriages unconstitutional)); Indiana (Baskin v. Bogan, Nos. 1:14-cv-00355-RLY-TAB, 1:14-CV-00404-RLY-TAB, 1:14-CV-00406-RLY-MJD, 2014 WL 1814064 (S.D. Ind. June 25, 2014) (finding Indiana's ban on recognition of same-sex marriages unconstitutional and plaintiffs are entitled to a TRO)); and Tennessee (Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) (finding Tennessee's ban on recognition of out-of-state same-sex marriages and adoptions unconstitutional as to the six plaintiffs)). These cases do not directly address the right to marry in those states but implicate the invalidity of marriage bans.

There are a number of other cases filed in other states. Robicheaux v. George, in the Eastern District of Louisiana, was argued on June 25, 2014. The case (consolidated with Forum for Equality Louisiana v. Barfield) seeks to have Louisiana's ban on recognition of same-sex marriages from other states ruled unconstitutional.

At this point, the decisions finding same-sex marriages and equality bans unconstitutional will likely continue with even the most conservative jurisdictions' bans being challenged and the challengers winning.

Keywords: litigation, LGBT, same-sex marriage, stays, Fourteenth Amendment, Defense of Marriage Act, gay marriage, LGBT marriage

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