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.

PFAW Foundation

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.

PFAW Foundation

One More Win Towards Ending Discrimination: Non-Discrimination Ordinance Passes in Roeland Park, KS

The following is a guest post by Roeland Park Councilwoman Megan England, member of People For the American Way Foundation’s Young Elected Officials Network.

Before a city council vote last week in Roeland Park, Kansas, it was legal in our town to refuse or terminate housing, services, or employment for someone on the basis of who they are or who they love. I didn’t believe that our community would tolerate this kind of treatment for our lesbian, gay, bisexual, and transgender neighbors and friends. As a councilmember, I felt the obligation to ensure that everyone — regardless of sexual orientation, gender identity, or military status — has the opportunity to live, work, and contribute here.

This spring, Councilwoman Jennifer Gunby and I introduced a non-discrimination ordinance providing protections for the LGBT community and others. This seemed like the right thing to do for many reasons. First, it’s fair and just. It shows that our town, like so many others, values diversity and inclusion. It highlights the shared values of our community. It’s good for our economy, since it attracts businesses and visitors who want to feel that everyone is welcome in our town. It supports a strong and productive workforce and happier, healthier communities. What’s more, many of our neighboring towns were already a few steps ahead of us. Cities like Lawrence, Kansas and Kansas City, Missouri have had similar non-discrimination protections for over 20 years. In every corner of the country, cities and towns are increasingly understanding the importance of passing laws that prevent discrimination. And we were thrilled last week when Roeland Park finally did, too.

However, we still face an uphill battle in the larger fight for equality. In my work on this ordinance, I’ve learned that many people — even members of the press — are still unaware of the lack of federal protections in place for the LGBT community. There’s no end in sight to congressional gridlock in Washington, and it may be a while before our state of Kansas has the leadership necessary to wipe discrimination from the books. My hope is that other local elected officials will realize, like I did, that they have the power to make a simple but profound change in the lives of those they are sworn to represent. While change may be slow nationally, at the local level we have a tremendous opportunity to protect and serve our constituents, and to drive progress and innovation.

When Councilwoman Gunby and I began this process, we thought change might come quickly; we didn’t expect five months of revisions, public hearings, and tense discussions. While much longer and more difficult than we imagined, I now realize the importance of that process. It reaffirmed my respect for the political process. I saw the benefits of engaging the community in a critical dialogue, and in bringing light to the issue week after week. In some of the more difficult moments, when I wasn’t sure that the ordinance would ultimately pass, I wondered if it had all been worth it. One local transgender man answered that for me by sharing the story of how speaking publicly for the first time and simply telling his personal story encouraged young trans people to reach out to him for support and guidance. It was this act of kinship, of humanity and community, that reinforced for me the importance of the process no matter the outcome.

When focused on the big picture, we sometimes fail to see the smaller impacts of our work, the daily reverberations. But now, with both the ordinance in place and many conversations started, our community is all the better for it.     

PFAW Foundation

David Perdue: Too Extreme for Georgia

On Tuesday, David Perdue triumphed over longtime representative Jack Kingston in the Republican runoff for Saxby Chambliss’ U.S. Senate seat. The former Dollar General CEO has never run for political office, a distinction he has made the central theme of his campaign. Perdue has boasted that he is a “different kind of candidate,” but we’ve seen a candidate like him before: 2012 Republican presidential nominee Mitt Romney.

The similarities between Romney and Perdue are striking: both CEOs, both millionaires, and both completely out of touch. Romney, however, was accused by right-wingers of being one thing Perdue clearly isn’t: moderate. Perdue has made no attempt to seem even relatively moderate and has dragged his extremist ideals as far to the right as he can. Make no mistake: he will not represent Georgia. Instead, he’ll represent those like him: wealthy, anti-immigrant and anti-equality.

Perdue already has proven that he is wrong for Georgia. He signed the FAIR Pledge, a pledge created by the Federation for American Immigration Reform (FAIR) Task Force, vowing to oppose not only a pathway to citizenship for undocumented students but also any increase in work visas for legal immigrants. He is also anti-choice and anti-equality. With nearly 10 percent of Georgia’s population identifying as Latino and over 260,000 Georgians identifying as LGBTQ, Perdue would have a duty to represent all of his constituents—and that is a duty he won’t fulfill.

David Perdue has made it clear that he does not understand needs of Georgia’s diverse, changing population, which is why PFAW will help to make it clear that he is not the right choice for Georgia.
 

PFAW

Will Anti-Gay Groups Learn from Florida Court Ruling for Marriage Equality?

A Florida state court today became the latest in recent months to rule that prohibiting same-sex couples from marrying violates the U.S. Constitution. (As Freedom to Marry notes, the ruling applies only in Monroe County.)

One interesting part of the Equal Protection portion of the ruling discusses whether proponents of Florida's ban have anti-gay animus. Circuit Judge Luis Garcia discusses the arguments of two parties who had submitted amicus briefs in support of the ban: Florida Family Action (which is affiliated with the Florida Family Policy Council) and People United to Lead the Struggle for Equality. Perhaps not surprisingly, he finds the animus in the types of arguments they choose to make:

The court finds that despite the Amici Curiae assertion that there is no evidence of animus towards homosexuals by the proponents of the Florida Marriage Protection Amendment (FMPA), there is ample evidence not only historically but within the very memorandum of law filed by the Amici Curiae. ... [It] paints a picture of homosexuals as HIV infected, alcohol and drug abusers, who are promiscuous and psychologically damaged and incapable of long term relationships or of raising children. They contend, "the personal, social and financial costs of these homosexual-specific health problems concern not just those who engage in homosexual activity, but also the larger community of citizens who help provide services and who must bear part of the burden imposed by the health challenges. It is eminently rational for the voters of Florida to seek to minimize the deleterious effect of these conditions on public health, safety and welfare by affirming that marriage in Florida remains the union of one man and one woman."

The judge concluded that there was animus behind the Florida ban, such that the law is subject to a somewhat higher level of scrutiny than the ordinary law for Equal Protection purposes. Not surprisingly, the ban fails that scrutiny.

It is not a good day for right-wing groups that peddle in vicious anti-gay stereotypes.

PFAW Foundation

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!

PFAW Foundation

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!

PFAW Foundation

Same-Sex Marriages Continue in Wisconsin After Federal Judge Denies Motion to Stay

Since last Friday’s ruling by Federal Judge Barbara Crabb that Wisconsin’s ban on same-sex marriages is unconstitutional, hundreds of same-sex couples have lined up to get marriage licenses across the Badger State. Immediately after receiving the ruling, clerks in Dane and Milwaukee counties began issuing marriage licenses, and in both areas, facilities stayed open late on Friday and continued issuing licenses on Saturday. Officiants, including judges, ministers, and commissioners, married couples on-site at their respective county courthouses.

Similar to actions in other states where courts have struck down same-sex marriage bans, Wisconsin’s right-leaning GOP Attorney General J.B. Van Hollen filed multiple motions to “preserve the status quo” attempting to stop same-sex marriages from happening.

As of Tuesday afternoon, 48 of the state’s 72 counties were issuing marriage licenses to same-sex couples, despite the ongoing legal battle. Wisconsin’s Vital Records Office is accepting the licenses, but holding them until they receive further guidance from Van Hollen.

For its part, the ACLU filed a proposal of how to implement same-sex marriage in the state. If approved, the plan would force Governor Scott Walker, Attorney General Van Hollen, and county clerks across the state to treat all same-sex and opposite-sex couples equally under the law.

Judge Crabb is set to have another hearing on June 19th.

PFAW Foundation