Will the Real Windsor II Please Stand Up?

There are currently dozens of cases pending in the federal courts, all competing for the same honor.1 Each of them wants to be the case where the United States Supreme Court rules that same-sex couples right to marry is protected by the federal constitution. So far, all indications are that this ruling would be the next step following Windsor v. United States, where the Supreme Court struck down section 3 of the Defense of Marriage Act. Seventeen States and the District of Columbia currently have marriage equality. The other thirty-three States exclude same-sex couples from marriage. Twenty-nine of these States have constitutional provisions. There are only four States left where legislation alone could open marriage to same-sex couples. This means that the heart of the national marriage equality movement has moved from the state legislatures into the federal courts. Is a same-sex couples right to marry protected by the federal due process clause, or the equal protection clause, or both? Several district courts have reached these questions. But no federal circuit court of appeals has ruled on the question yet. Which one will be first? A few months ago, the best prediction would have been the Ninth Circuit. The Ninth Circuit has two appeals concerning the constitutionality of laws preventing same-sex couples from marrying: the Nevada case, Sevcik v. Sandoval, and the Hawaii case, Jackson v. Abercrombie. In both cases, the federal district court upheld the laws barring same-sex couples from marrying, both before Windsor was decided. Both were appealed to the Ninth Circuit. But recent events have made it unlikely that either of these cases could ultimately become Windsor II. Hawaii enacted marriage equality via legislation in November 2013, and the Ninth Circuit recognized that this likely rendered the challenge moot but has not yet dismissed the appeal. In all likelihood, this mootness removes Jackson from the contenders for the title. Nevadas case also had some important recent developments. In January, in a case that concerned juror strikes, the Ninth Circuit ruled that discrimination on the basis of sexual orientation was entitled to heightened scrutiny under the equal protection clause. SmithKline Beecham Corp. v. Abbott Laboratories. Though this is not a marriage case, it sent shockwaves through the Ninth Circuit cases. Nevada threw in the towel.2 It moved that it be allowed to withdraw its answering brief in the Ninth Circuit appeal and instead noted that its arguments based on equal protection and due process are no longer sustainable after SmithKline. In an order issued in mid-February, the Ninth Circuit granted this motion and expedited the case, but has not yet scheduled argument.
1

The information used in this entry comes from the cases cited, and the information available at the SCOTUSblog, Same-Sex Marriage http://www.scotusblog.com/category/specialfeatures/same-sex-marriage, Lambda Legal, available at http://www.lambdalegal.org/, the National Center for Lesbian Rights, available at http://www.nclrights.org/, and the American Civil Liberties Union, National Campaign for Marriage, available at https://www.aclu.org/outfreedom, and Freedom to Marry, Marriage Litigation, available at http://www.freedomtomarry.org/litigation (all last visited Feb. 20, 2014).
2

Oregon also withdrew its defense to a marriage ban in an answer filed February 20, 2014 in Geiger v. Kitzhaber, now pending in the District of Oregon.

For purposes of appeals moving forward in the federal courts, Nevadas decision to withdraw its defense is highly significant. Because the Nevada district court decision upheld the marriage ban, Appellants (the same-sex couples) clearly have standing to appeal. Given the SmithKline ruling, it seems likely that the Ninth Circuit will strike down the marriage ban.3 Importantly, however, if that occurs, there may be no party who simultaneously has standing to seek certiorari and would want to do so. The defendants in Sevcik are Nevadas Governor Sandoval, who has now declined to defend the ban, three county clerks, and intervenor-defendant Coalition for the Protection of Marriage.4 But Nevadas decision not to defend may put the Sevcik intervenors in the same position as the proponents of Proposition 8 were last year in Hollingsworth v. Perry after California declined to defend that law. They could be without standing to seek certiorari. The Ninth Circuit could be the end of the line.5 Or maybe not. Nevadas decision to drop its defense does not change the law itself; the marriage ban is still being enforced. In Windsor, the United States conceded the unconstitutionality of section 3 of DOMA, but still would not give the plaintiff the relief sought. The Court held that the United States had Article III standing to appeal even though its own position was consistent with the lower courts ruling. If the same analysis is applied here, Nevada may have standing to seek certiorari if the marriage ban is struck down but Nevada will not allow the plaintiff couples to marry.6 This would be a leap of some proportions: thus far, Nevadas position following SmithKline was more akin to a concession than to switching sides. It is far too soon to say what decisions Nevada may make if the marriage ban is struck down by the Ninth Circuit. There may be delay caused by additional proceedings in SmithKline as well. Sevcik has many complications. It may not qualify as Windsor II for these reasons. All in all, these developments make it more likely that the Tenth Circuit, rather than the Ninth, will decide a case that could reach the Supreme Court. In late December 2013, the
3

SmithKline could have subsequent proceedings. The Court granted Abbott Laboratories motion to extend the time to file a motion for rehearing en banc until March 6, 2014.
4

Of the three county clerks that are defendants-appellees in Sevcik, only one of them filed an answering brief. That brief was withdrawn a few weeks before Governor Sandoval withdrew his defense of the law.
5

If the Ninth Circuit strikes down the Nevada ban but no party with standing seeks certiorari, the consequence would be of far broader reach than Perry. The district court decision striking down Prop. 8 in Perry (which no one had standing to appeal) was binding only on California. If the same thing happened in Sevcik, the result would presumably be binding throughout the circuit, including Alaska, Arizona, Idaho and Montana. All four of these States ban same-sex couples from marrying under their State constitutions. The other States in the Ninth Circuit either already recognize marriage equality (California, Hawaii, Washington) or have already conceded the defense (Nevada, Oregon).
6

The analogy may not be complete. In Windsor, the federal interest in one consistent nationwide rule for DOMA gave the United States a demonstrable need for a ruling from the Supreme Court. No such need exists here; a Ninth Circuit ruling striking down the marriage ban would bind the State of Nevada in full.

District of Utah became the first federal district court to strike down a marriage ban as unconstitutional post-Windsor. Kitchen v. Herbert, D. Utah, decided Dec. 20, 2013.7 Both the district court and the Tenth Circuit declined to issue a stay, and hundreds of same-sex couples married in Utah before the United States Supreme Court issued a stay on January 6, 2014. The order is stayed pending disposition of the Tenth Circuits appeal. Similar rulings followed in Oklahoma (Bishop v. United States, N.D. Okla., Jan. 14, 2014) and Virginia (Bostic v. Rainey, E.D. Va., Feb. 13, 2014). Both of these were stayed sua sponte consistent with the Supreme Courts stay in Kitchen, so there was no rush of weddings in those States. Oklahoma and Utah have already appealed to the Tenth Circuit.8 The Tenth Circuit expedited the appeals and has scheduled them for argument separately in April. It seems unlikely that the circuit court will sit on the appeal for long, making it possible that an appeal decided within the next few months could reach the Supreme Court during the 2014-2015 term. Realistically speaking, these cases are the closest to review by the Supreme Court. At the moment, one or potentially both of these two cases are probably the best contenders for the title of Windsor II.9 Every federal court that has ruled on the issue since Windsor has concluded that same-sex couples right to marry is protected by the federal constitution. Common wisdom holds that the Supreme Court will want to take such a large, controversial issue in increments, and allow the issues to percolate in the lower courts for a while. On this issue, the percolation seems to be happening over the course of months rather than years. The Supreme Court will not be able to stay away for long.

Also in December, the New Mexico Supreme Court ruled that the New Mexico Constitution required the recognition of marriage for same-sex couples. Griego v. Oliver, N.M., Dec. 19, 2013. This decision makes New Mexico into a marriage equality State but does not extend beyond its borders.
8

Two notice of appeal were filed in the Virginia case on February 24, 2014. In January the Virginia Attorney General announced his intention to drop the defense of the law and joined the plaintiffs position before the district court. As a matter of interest, one of the notices of appeal was filed on behalf of his client. Significantly, however, there is another government defendant that is defending the law and also appealed, making it less likely that standing will be an issue on appeal.
9

There are also other closely related decisions issued recently. In particular, there are two recognition cases: cases that turn on a States ability to deny recognition for same-sex couples marriages validly entered in other States, rather than on the States ability to refuse to allow a same-sex couple to marry. The Southern District of Ohio ruled recently that Ohio was required to recognize a same-sex couples marriage legally entered in Maryland, for purposes of a death certificate when one of the spouses died. Obergefell v. Wymsyslo, S.D. Ohio, Dec. 23, 2013. Ohio has appealed. And in February, the Western District of Kentucky ruled that the State of Kentucky was required to recognize same-sex couples marriages validly entered in other States. Bourke v. Beshear, W.D. Ky., Feb. 12, 2014. This was not a final order; further proceedings are required to determine the appropriate relief. Perhaps one of these cases might offer a vehicle for the Supreme Court to advance these issues without a direct ruling extending marriage equality nationally in one moment?