7th Circuit Says Arguments Against Marriage Equality "Cannot Be Taken Seriously"

Today's unanimous panel ruling by the Seventh Circuit striking down Wisconsin and Indiana's marriage bans is a well-written, carefully reasoned take-down of some of the ludicrous arguments that equality opponents have been making to defend their policy of discrimination. It was written by Richard Posner, a noted conservative put on the bench by Ronald Reagan, and joined by judges nominated by Bill Clinton and Barack Obama. Ruling on the basis of the Equal Protection Clause of the Fourteenth Amendment, the court summarizes its opinion nicely:

Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

Judge Posner writes:

Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.

He carefully considers the argument put forward by the states that marriage is restricted to one man and one woman to benefit children. Among the many ways this argument fails to hold water:

But then how to explain Indiana's decision to carve an exception to its prohibition against marriage of close relatives for first cousins 65 or older—a population guaranteed to be infertile because women can't conceive at that age? [Wisconsin also bans first cousins from marrying unless the woman is over 55 or where the couple presents a doctor's affidavit saying one of them is permanently infertile.] If the state's only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? ... Elderly first cousins are permitted to marry because they can't produce children; homosexuals are forbidden to marry because they can't produce children. The state's argument that a marriage of first cousins who are past child-bearing age provides a "model [of] family life for younger, potentially procreative men and women" is impossible to take seriously.

With regard to the commonly heard refrain, echoed by attorneys for Indiana and Wisconsin, that courts should respect democratically-enacted bans on marriage by same-sex couples, Judge Posner points out what should be obvious to anyone who claims fealty to the United States Constitution:

Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

Courts exist to enforce the Constitution against those who would subvert it. And that drives the right crazy.

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Louisiana's Marriage Ban Is Upheld By Judge Citing "Lifestyle Choices"

Judge Martin Feldman, nominated to the Eastern District of Louisiana thirty years ago by President Reagan, today upheld that state's marriage ban against same-sex couples. But his opinion concluding that the ban is constitutional is hardly a model of rigorous and dispassionate legal or factual analysis.

Early in the opinion, he makes clear that he simply doesn't see gay and lesbian couples as anything at all like opposite-sex couples:

This national same-sex marriage struggle animates a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition. (emphasis added)

This fundamental misunderstanding – reducing the love and commitment shared by lesbian and gay couples to nothing more than a simple "lifestyle choice" – colors his entire approach to the case.

In his Equal Protection analysis, he rules that classifications based on sexual orientation are subject only to the lowest-level, "rational basis" scrutiny. He gives two reasons. First, he cites higher court cases like Windsor that have avoided squarely answering that question, "despite opportunities to do so." Second, applying heightened scrutiny would "demean the democratic process." That's pretty circular reasoning, considering that heightened scrutiny exists in recognition that even democratically-enacted laws can violate a vulnerable group's Equal Protection rights.

His conclusion that the ban isn't sex discrimination is similarly flawed. Under the bans, your sex determines whether you can marry a particular person, playing the same role that race did in Loving v. Virginia. In that case, the Supreme Court rejected Virginia's argument that laws prohibiting interracial marriage did not trigger Equal Protection concerns because they applied to blacks and whites alike. Once the Court recognized that the law treated people differently based on their race, it followed standard Equal Protection analysis, striking down the law under the strict scrutiny that applies to racial discrimination. Other courts have recognized that bans against same-sex couples getting married similarly trigger Equal Protection concerns. In disagreeing with those courts, Judge Feldman rewrites Loving (and the Fourteenth Amendment):

Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil … [N]o analogy can defeat the plain reality that Louisiana's laws apply evenhandedly to both genders--whether between two men or two women. Same-sex marriage is not recognized in Louisiana and is reasonably anchored to the democratic process. The Court is therefore satisfied that rational basis applies.

First off, the Fourteenth Amendment doesn't "expressly condemn racial discrimination" or even specifically mention race. Its ringing call for liberty and equality applies to "any person." Sorry, Judge Feldman, but that includes lesbians and gays.

Secondly, Feldman flips Loving on its head. Loving recognized that the state's marriage laws were subject to Equal Protection scrutiny despite, to use Feldman's formulation in this case, "the plain reality that [Virginia's] laws appl[ied] evenhandedly to both [races]." The Supreme Court didn't see through the ruse of "it applies to everyone" because of strict scrutiny; it used strict scrutiny because it saw through the ruse of "it applies to everyone."

Although other courts have struck down marriage bans under rational basis, Feldman upholds Louisiana's ban as related to the state's goals of linking children to their birth parents and managing social change through democratic consensus. He suggests that it could be struck down only if motivated solely by animus, which he rejects (although other courts have struck down the law under rational basis without a finding of animus). (The Supreme Court has held that animus against gays and lesbians is not a legitimate justification for a law.)

As for the Due Process claim, he sees the constitutional right at issue not as marriage, but as "same sex marriage." This is not surprising, since he doesn't see the couples before him as anything except people exercising and seeking approval of an alternative "lifestyle choice." And since there has not been a longstanding recognition of the right to "same sex marriage," he uses rational basis for the Due Process claim, and the couples before him lose again.

Toward the end of the opinion, Judge Feldman channels his inner Scalia, condemning judges who, like "philosopher kings," have ruled in favor of same-sex couples. He writes:

Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. … For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child?

That canard is so easily rejected. Can Judge Feldman really not come up with a single reason to ban child marriages or incestuous marriages that would not apply to marriages between unrelated adults of the same sex? Not one? The reasons for not letting a father marry his child really have nothing to do with the fact that one of the parties is a child, and that the other party is their father?

Judge Feldman was put in the bench back in 1983 by President Reagan. Our country was a much darker place for lesbians and gays then, and a ruling such as his would not have been surprising thirty years ago. But given the enormous changes in constitutional law that we have seen since then, Feldman's ruling is clearly a throwback to an earlier and less equal time.

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The Victims of the Religious Right

This post was originally published at the Huffington Post. 

Yesterday's marriage equality ruling from a federal district court in Florida, like so many before it, strikes down laws preventing same-sex couples from marrying. And like all the ones before it, this ruling isn't a theoretical treatise on the law, but a legal opinion affecting real people.

All of the people suing to vindicate the rights guaranteed by the United States Constitution have a story to tell. All of them are important. The judge briefly describes them, such as this lesbian couple:

Arlene Goldberg married Carol Goldwasser in New York in 2011. Ms. Goldwasser died in March 2014. The couple had been together for 47 years. Ms. Goldwasser was the toll-facilities director for Lee County, Florida, for 17 years. Ms. Goldberg is retired but works part time at a major retailer. The couple had been living with and taking care of Ms. Goldwasser's elderly parents, but now Ms. Goldberg cares for them alone. Social-security benefits are Ms. Goldberg's primary income. Florida's refusal to recognize the marriage has precluded Ms. Goldberg from obtaining social-security survivor benefits. Ms. Goldberg says that for that reason only, she will have to sell her house, and Ms. Goldwasser's parents are looking for another place to live.

Think about it: If the grieving Arlene Goldberg loses her house just because she couldn't get married, that is what victory for the Religious Right looks like.

Recall that the Religious Right has not only spent the past thirty or forty years fighting to prevent gays and lesbians from marrying. They have also fought tooth and nail against every advance in civil rights that has come during that time, affecting employment discrimination, child custody, healthcare decisionmaking ... you name it. Victory for them has meant forcibly separating parents from their children, firing gay teachers, making grieving mourners lose their homes, and much, much more.

Fortunately, most Americans don't side with the Religious Right. More and more Americans are recognizing that whatever negative assumptions they may have once had about lesbians and gays were simply not true. And they're realizing that discriminatory policies cause real harm to real people and should be changed. Most Americans don't like the idea of gratuitously hurting completely innocent people.

As for the Religious Right, hurting innocent people isn't just an infrequent or accidental byproduct of the movement's policies. They have been dedicated for decades to denying LGBT people as many legal rights as possible. The harms caused by the absence of those rights is what victory looks like for them.

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BREAKING: Florida Marriage Ban Struck Down

Finally, some good news: today a federal judge in Florida struck down the state’s ban on marriage for same-sex couples.

U.S. District Judge Robert L. Hinkle, nominated by President Clinton in the 1990s, ruled the 2008 ban unconstitutional on equal protection and due process grounds and predicted that future generations will look back with shock at the views of those who supported the ban:

'When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination,' Hinkle wrote. 'Observers who are not now of age will wonder just how those views could have been held.'

While the decision has been stayed — meaning that couples cannot immediately begin getting married — it is a significant step forward for equality. Congratulations, Florida!

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Appeals Court Strikes Down Marriage Ban in Virginia, Ruling Will Also Affect Carolinas and West Virginia

Today the 4th Circuit Court of Appeals struck down Virginia’s ban on marriage for same-sex couples.

This is a historic step forward for equality in the South. Beyond Virginia, the ruling will also affect the other states covered by the 4th Circuit, including North Carolina, South Carolina, and West Virginia, which have similar bans in place. In West Virginia, the district judge considering the challenge to the state’s ban said last month that he would not proceed until the federal appeals court had ruled.

In the majority opinion, the judges noted that bigotry and fear cannot be the basis for the denial of equal rights under the law:

We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.

…The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual's life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

For those who claim that marriage bans are legitimate because they were adopted by popular vote, the court quoted a Supreme Court case from 1964:

A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.

That one sentence perfectly encapsulates why courts matter.
 

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When Will Marriage Equality Head Back to the Supreme Court?

As state and federal courts continue to issue marriage rulings, one question remains – when will marriage equality head back to the Supreme Court?

We're getting closer to the answer.

Late last month, a ruling by a three-judge panel of the Tenth Circuit concluded that Utah's ban on same-sex marriage violates the Fourteenth Amendment's Due Process Clause (by denying a fundamental right to marry) and Equal Protection Clause (by making that right depend on a classification – the sex of the couple – that bears little if any relation to the state's purported goals).

Then yesterday we heard from the Utah Attorney General's office that the state will forego an appeal to the full Tenth Circuit and instead proceed to the US Supreme Court:

The U.S. Supreme Court is not obligated to hear Utah’s appeal — or any case regarding state same-sex marriage bans.

Should the justices decline to hear such a case, the rulings of lower courts, like that of the 10th Circuit Court of Appeals, would stand as the law of the land.

"We don’t really know if the Supreme Court will take this up or they won’t," said Equality Utah Executive Director Brandie Balken, who attended Wednesday’s march. "Unfortunately, today we have families, couples, children who are living in legal limbo."

Check out our website for more LGBT equality updates.

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Judge Strikes Colorado Marriage Ban

If you’re having trouble keeping track of the rapidly falling state marriage bans, you’re likely not the only one. In the latest of a dizzying streak of pro-equality decisions, a judge in Colorado struck down the state’s same-sex marriage ban yesterday.

District Court Judge C. Scott Crabtree stayed the ruling, which means that same-sex couples in Colorado cannot yet begin to marry.

In his decision, Judge Crabtree plainly noted that the ban “bears no rational relationship to any conceivable government interest.” He also underscored the discrimination faced by same-sex couples in the absence of marriage equality:

‘The Court holds that the Marriage Bans violate plaintiffs' due process and equal protection guarantees under the Fourteenth Amendments to the U.S. Constitution,’ Crabtree said in his ruling.

‘The existence of civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans.’

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Kentucky Marriage Ban Struck Down

Continuing the unbroken record of marriage equality wins since last year’s Supreme Court ruling against DOMA in the Windsor case, today a federal judge ruled unconstitutional Kentucky’s ban on marriage for same-sex couples.

District Judge John G. Heyburn II wrote:

In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.

He dismissed the opposing arguments — including that the ban was good for the state’s economic stability and birth rates — out of hand, noting, “These arguments are not those of serious people.”

The judge has stayed the ruling for now, meaning that Kentucky couples can’t immediately begin marrying. But the decision is a significant victory for LGBT families in the Bluegrass State, where activists have fought courageously for equal rights for many years. Congratulations, Kentucky!

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Tenth Circuit Protects Right to Marry

Since last year's Windsor decision striking down DOMA, one federal district court after another has struck down bans against marriage equality. Many of those rulings are being appealed. Today, for the first time, a federal appeals court has entered the national conversation, with a powerful opinion upholding the right of same-sex couples to marry.

The ruling by a three-judge panel of the Tenth Circuit concludes that denying gays and lesbians the right to marry violates the Fourteenth Amendment's Due Process Clause (by denying a fundamental right to marry) and Equal Protection Clause (by making that right depend on a classification – the sex of the couple – that bears little if any relation to the state's purported goals).

Under Due Process, a law denying a fundamental constitutional right is subject to strict scrutiny: It can survive only if it's narrowly tailored to serve a compelling government interest. Similarly strict scrutiny is required under Equal Protection for a classification that impinges on a fundamental right. (The court doesn't address one of the law's unanswered questions, which is whether any law discriminating against lesbians and gays should be subject to heightened scrutiny.)

The state of Utah put forth several arguments relating to reproduction and child-rearing, but the court pointed out that:

each of the appellants' justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples. Same-sex marriage must be banned, appellants argue, because same-sex couples are not naturally procreative. But the state permits many other types of non-procreative couples to wed. ... Same-sex marriage cannot be allowed, appellants assert, because it is better for children to be raised by biological parents. Yet adoptive parents, who have the full panoply of rights and duties of biological parents, are free to marry. As are opposite-sex couples who choose assisted reproduction.

...

[A] state may not satisfy the narrow tailoring requirement by pointing to a trait shared by those on both sides of a challenged classification.

For those who argue that the framers of the Fourteenth Amendment never intended for it to guarantee the rights of gays and lesbians, the court says:

Although courts may be tempted to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified ... such a view would be inconsistent with our law. A prime part of the history of our Constitution ... is the story of the extension of constitutional rights and protections to people once ignored or excluded. (internal quotations and citations omitted)

The opinion elaborates:

A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society. As the district court eloquently explained, "it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian."

The three-judge panel stayed today's ruling until the Supreme Court can resolve the expected appeal, so the right to marry won't automatically be coming immediately to the other states in the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, and Wyoming). In fact, the same three-judge panel is still considering a constitutional challenge to a marriage ban in one of those states, Oklahoma. Oral arguments in the two cases were held just a week apart.

Utah could appeal today's panel decision to the entire Tenth Circuit, or it could instead go directly to the Supreme Court (which would decide for itself whether to hear the case).

PFAW Foundation

Indiana’s Marriage Ban Struck Down

In another win for equality, today U.S. District Judge Richard Young struck down Indiana’s ban on marriage for same-sex couples. Because the judge did not stay the ruling, the Indianapolis Star reports that couples can begin getting married right away.

Not a single state marriage ban has been able to withstand a challenge in federal court in the wake of the Supreme Court’s 2013 decision in United States v. Windsor, which struck down part of DOMA.

Congratulations, Indiana!

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