<b><i>Online Special Report</b></i> 'No Need to Rush': As State Bans on Same-sex Marriage Continue to Fall, the Supreme Court Dodges the Issue (for Now)

The day after the Supreme Court's denials of certiorari, the Ninth Circuit issued a ruling of its own, striking down bans on same-sex marriage in Idaho and Nevada. Latta v. Otter, Nos. 14-35420 & 14-35421, 2014 WL 4977682 (9th Cir. Oct. 7, 2014). In so doing, the Court of Appeals both affirmed a district court ruling that had invalidated Idaho's ban and reversed a trial court decision ' rendered before the Supreme Court's landmark decision in United States v. Windsor, 133 S. Ct. 2675 (2013) ' that had upheld the ban in Nevada. Like the other courts that had overturned same-sex marriage bans, the Ninth Circuit relied in part on Windsor. In its unanimous opinion, the three-judge panel concluded, inter alia, that

[i]n extending the benefits of marriage only to people who have the capacity
to procreate, while denying those same benefits to people who already have
children, Idaho and Nevada materially harm and demean same-sex couples and
their children. . . . Windsor, 133 S. Ct. at 2694. Denying children resources and
stigmatizing their families on this basis is 'illogical and unjust.' . . . It is
counterproductive, and it is unconstitutional.

Latta, 2014 WL 4977682, at *8 (footnote and citation omitted). ”

Almost immediately, Justice Anthony Kennedy, as Circuit Justice, granted the State of Idaho's request for a stay of the ruling, pending further appeal. The stay did not apply to the State of Nevada, which chose not to appeal from the Ninth Circuit ruling, thus permitting same-sex marriages to go forward there. A week later, Idaho officials chose to end their appeal, too, and the first same-sex marriage ceremonies in that conservative state were performed on October 15. But then those same officials reversed course, and on October 21, Idaho appealed the decision of the three-judge panel in Latta, petitioning the Ninth Circuit for a hearing en banc. The following day, Alaska also asked the same court for an en banc hearing, days after legal same-sex marriages had begun in the state in the wake of both the Latta decision and the trial court ruling that struck down Alaska's ban on same-sex marriage in Hamby v. Parnell, No. 3:14-cv-000089, 2014 WL 5089399 (D. Alaska Oct. 12, 2014).

Within two weeks of the Supreme Court's denial of certiorari in the cases from the Fourth, Seventh and Tenth Circuits, as well as the Ninth Circuit's decision, the states in which same-sex marriage is legal had jumped from 19 to more than 30. As of October 17, nearly all of the states in the four affected circuits allowed same-sex couples to marry:

In the Fourth Circuit, only one state ' South Carolina ' refused to legalize same-sex marriage, resisting the appellate court's Bostic decision. And among the states within the Ninth Circuit, notwithstanding the applications for an en banc hearing by Idaho and Alaska, only Montana maintained its ban on gay marriage.

There was also one state in the Tenth Circuit ' Kansas ' that resisted the Court of Appeals' pro-marriage equality rulings in Kitchen and Bishop. On October 31, a federal trial court heard arguments on plaintiffs' motion for an injunction to stop Kansas from enforcing its ban on same-sex marriage. Marie v. Moser, No. 14 cv 2518 (D. Kan.). Further complicating matters in Kansas, a state trial judge handed down an administrative order permitting the issuance of marriage licenses to same-sex couples in one county, based on the Tenth Circuit's rulings in'Kitchen and Bishop and the U.S. Supreme Court's denial of certiorari in those cases. After one same-sex couple was issued a marriage license, the Supreme Court of Kansas temporarily stayed the administrative order pending adjudication of the State's petition seeking vacatur of that order. State v. Moriarity, No. 112,590 (Kan. Oct. 10, 2014). The court scheduled oral arguments on the petition for November 6. '

Will the Sixth Circuit Uphold Bans on Same-sex Marriage, Creating a Circuit Split?

Characteristically, the Justices gave no reason for their decision to dodge the issue of whether states may constitutionally ban same-sex marriage. Speculation abounded as to why the Court had sidestepped the issue. But perhaps the simplest explanation was that offered in a remark made by Justice Ruth Bader Ginsburg shortly before the start of the Court's Term. She said in September that for the Justices there is 'no need . . . to rush' unless a split emerges among the Circuit Courts and one of them decides to uphold a state ban on same-sex marriage. In mid-October, Justice Ginsburg similarly remarked that in the absence of a circuit split, 'there is no crying need for [the Court] to step in' on the issue of same-sex marriage.

The circuit split that might lead to Supreme Court intervention may yet emerge during the Court's'current'Term. To be sure, even as the Justices denied certiorari in the same-sex marriage cases before it, at least one other federal court of appeals ' the Sixth Circuit ' was poised to decide cases in which trial courts had struck down bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. Based upon the tenor of questions by the three-judge panel that heard oral arguments in those cases, analysts have suggested that the Sixth Circuit may well uphold bans on gay marriage in the states within it. See, e.g., Mark Joseph Stern, The 6th Circuit Looks Poised to Uphold Gay Marriage Bans'for 'Democracy,' Aug. 7, 2014,'http://slate.me/1wXXpZN.

In particular, the questions of Judge Jeffrey Sutton, a George W. Bush appointee and former law clerk to Justice Antonin Scalia, seemed to portend a decision by the Sixth Circuit in favor of state same-sex marriage bans. During oral argument on August 6, Judge Sutton suggested that the issue of same-sex marriage is better left to the democratic process ' the vote of the people ' and not to a handful of judges:

I would've thought the best way to get respect and dignity [for the marriage of same-sex couples] is through the democratic process. . . . Don't you think you're more likely to change hearts and minds through the democratic process than you are through a decision by five justices of the U.S. Supreme Court?

Id. If the prognosticators are correct, and the Sixth Circuit were to uphold same-sex marriage bans, that would indeed create the sort of split among the circuits that just might get the Justices to grant certiorari. And the high Court would finally have to decide whether states may deny same-sex couples the right to marry without running afoul of the federal Constitution.' ””'

Leave it to the 'Democratic Process': Some Courts Uphold Same-sex Marriage Bans '

If the Sixth Circuit were to uphold the same-sex marriage bans before it on the theory suggested by Judge Sutton ' that deference must be paid to the popular votes that put them in place ' it would not be the first federal court to reach that conclusion. The same 'leave it to the democratic process' argument was relied upon by the federal trial judge who upheld Louisiana's ban on same-sex marriage in Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014) (holding that the state's same-sex marriage ban 'is reasonably anchored to the democratic process').

Less than a month after the Sixth Circuit oral arguments, Judge Martin Feldman ruled in Robicheaux that the State of Louisiana has a legitimate interest in 'linking children to an intact family formed by their biological parents' and that fundamental social change, such as the recognition of same-sex marriage, is 'better cultivated through democratic consensus' than through the courts. Id. at 919. Indeed, Judge Feldman wrote that he could not be indifferent to what he called the unknown and potentially 'imprudent consequences' of judicially legalizing same-sex marriage when the issue can be decided in 'the arena of democratic debate.' Id. at 926.

Judge Feldman acknowledged that his ruling came after a nearly unbroken skein of more than 40 decisions by federal and state courts that had invalidated state same-sex marriage bans in the wake of Windsor. He cited only one post-Windsor federal decision ' also from Louisiana ' in which a challenge to a state same-sex marriage ban was dismissed: Merritt v. Attorney General, 2013 U.S. Dist. LEXIS 162583 (M.D. La. Nov. 14, 2013) (dismissing as frivolous a complaint by a pro se detainee in Louisiana's mental health system who alleged that the state's marriage ban violated his rights). In addition, a Tennessee state court had recently refused to grant a divorce to a same-sex couple who had been legally married in Iowa.' Borman v. Pyles-Borman, No. 2014CV36 (Tenn. Cir. Ct. Aug. 5, 2014) (unpublished).

Attorneys representing the same-sex couple plaintiffs in Robicheaux promptly noticed an appeal from Judge Feldman's decision, and the Fifth Circuit has scheduled oral argument for January 5, 2015. On the same day, the court will also hear argument on the appeal by the State of Texas in De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014) (striking down the state's same-sex marriage ban based on Windsor). '

In his Robicheaux ruling, Judge Feldman was clearly undeterred by the trend toward marriage equality evidenced by the long line of pro-same-sex marriage decisions since Windsor. So was District Judge Juan P'rez-Gim'nez when he dismissed a lawsuit that challenged Puerto Rico's ban on same-sex marriage in Conde-Vidal v. Garcia-Padilla, Civ. No. 14-1253, 2014 WL 5361987 (D.P.R. Oct. 21, 2014) (relying on Baker v. Nelson, 409 U.S. 810 (1972)).

In Baker, the Supreme Court ' for what it called 'want of a substantial federal question' ' had summarily rejected an appeal by a same-sex couple who challenged Minnesota's ban on gay marriage. And though Baker has never been explicitly overruled, its vitality as precedent on the issue of same-sex marriage has been questioned often by lower courts, especially in light of more recent decisions ' Windsor aside ' in which the Supreme Court has struck down laws that discriminated against the individual rights of gays and lesbians. See, e.g., Romer v. Evans, 517 U.S. 620 (1996).

Nonetheless, Judge P'rez-Gim'nez did grant dismissal of the Conde-Vidal complaint based on the questionable precedential value of Baker, holding that plaintiffs' complaint had failed to raise a substantial federal question. But he did not limit his opinion to that ruling. Rather, in the opinion's 'Conclusion' ' a section usually reserved for a pithy recitation of a court's ruling ' the judge expounded his personal view of the merits (or lack of merits) of plaintiffs' claim, noting that '[t]raditional marriage is 'exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship' . . . .' 2014 WL 5361987, at *10 (quoting Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting)). Judge P'rez-Gim'nez also gave a nod to the 'democratic process' argument, declaring that 'one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law.' 2014 WL 5361987, at *11. And he concluded that '[i]t is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . .' Id. (quoting Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014) (per Kennedy, J.)). On October 28, a week after the dismissal order was handed down, plaintiffs filed a notice of appeal to the First Circuit.'

The question now is whether the Sixth Circuit, or one of the other U.S. Circuit Courts that has same-sex marriage cases pending before it, will ' like the federal trial courts in Louisiana and Puerto Rico ' also buck the nationwide trend and send the issue to the high Court. And in the event that the Sixth Circuit does uphold same-sex marriage bans, an ancillary question arises: Whether that decision will be based upon the notion that the people in each state ' through the 'democratic process,' i.e., the popular vote ' should be able to determine the definition of marriage and, by extension, determine who has the right to marry. The suggestion by Judge Sutton that the argument has merit ' together with the reliance on the argument by the trial judges in Robicheaux and Conde-Vidal ' makes that a real possibility. And it merits an examination of how that argument has been treated by the Circuit Courts whose same-sex marriage decisions the Supreme Court has let stand (and by the Ninth Circuit, whose decision has yet to be appealed).

The 'Democratic Process' Argument in the Fourth, Seventh and Tenth Circuits (and the Ninth)

In the Fourth, Seventh and Tenth Circuit decisions that have struck down state bans on gay marriage, the appellate courts ' like the trial courts before them ' relied substantially on the high Court's decision in Windsor. (In previous issues of 'The Matrimonial Strategist,' we examined the impact of Windsor in articles focusing on federal trial courts that used that Supreme Court decision as the basis for toppling state same-sex marriage bans. See Gulino, The March Toward Marriage Equality in a Post-Windsor Nation, 31 The Matrimonial Strategist 3 (No. 12 Dec. 2013) and its sequel: Continuing the Discussion, 32 The Matrimonial Strategist 1 (No. 6 June 2014).)

But those Circuit Courts did not merely rely on Windsor and other precedent to support their rulings. They also specifically addressed ' and rejected ' the argument made by the federal trial courts in Louisiana and Puerto Rico that have upheld bans on same-sex marriage, the same argument suggested by Judge Sutton during oral argument before the Sixth Circuit, i.e., that the 'democratic process' ' the vote of the people ' is the proper vehicle for determining who has the right to marry.

In Bostic, for instance, the Fourth Circuit noted that 'Americans' ability to speak with their votes is essential to our democracy. But the people's will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry.' 760 F.3d at 379. The court noted further that the 'very purpose' of the Bill of Rights and the Fourteenth Amendment is

to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Id. (quoting W.Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)). '

Judge Richard Posner, writing for the Seventh Circuit in Baskin, similarly rejected an argument, made by the State of Wisconsin, that its ban on same-sex marriage was 'the outcome of a democratic process ' the enactment of a constitutional ban by popular vote.' 766 F.3d at 671. He was succinct in his dismissal of the argument, noting that '[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.' Id.' '

The Tenth Circuit, too, addressed and set aside the argument in support of Utah's ban on same-sex marriage that stressed 'the value of democratic decision-making and the benefits of federalism in allowing states to serve as laboratories for the rules concerning marriage.' Kitchen, 755 F.3d at 1228. As Judge Carlos Lucero wrote for the majority:

Plaintiffs in this case have convinced us that [the Utah ban on same-sex marriage] violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental'rights are not matters for opinion polls or the ballot box.

Id.

And when the Ninth Circuit joined its sister courts, striking down the state same-sex marriage bans before it in October, it also dealt with and rejected a virtually identical argument by the defendants opposing marriage equality:

[Defendants] argue that the population of each state is entitled to exercise its democratic will in regulating marriage as it sees fit [and that] [e]ach state 'has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.' . . . True enough. But a primary purpose of the Constitution is to protect minorities from oppression by majorities. As Windsor itself made clear, 'state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.'

Latta, 2014 WL 4977682, at *9 (citations omitted).

A Majority Vote Cannot Be Enough: It's Called Constitutional Law

The idea that the fundamental rights of minorities should not be grist for the ballot box is not a new one. Indeed, last year in 'The Matrimonial Strategist” prior to the Windsor decision ' we argued the case against popular referenda as a vehicle for determining the fundamental right to marry. See Gulino, For Better or for Worse: The Case Against Referenda on Marriage Equality, 31 The Matrimonial Strategist 1 (No. 1 Jan. 2013). As we noted there (see id. at 8), James Madison wrote of the danger to a weaker minority posed by what Alexis de Tocqueville called the 'tyranny of the majority.” 'If a majority be united by a common interest,' Madison wrote, 'the rights of the minority will be insecure.' The Federalist No. LI (Feb. 8, 1788), in The Complete Madison 181 (Saul K. Padover ed. 1988).' Society must provide against that 'evil,' Madison continued, for '[i]n a society [in] which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger . . . .' Id. at 181-82.'

Even author Ayn Rand, a darling of many on the conservative right, long ago noted the inappropriateness of determining individual rights through popular election:

Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).

Ayn Rand, Collectivized 'Rights,' June 1963.'

To be sure, as the Fourth Circuit noted in Bostic, the ability of Americans to speak with their votes is essential to our democracy. But as the same court also noted, the Bill of Rights and the Fourteenth Amendment stand for the purpose of removing decisions on fundamental rights from the political process. See 760 F.3d at 379. Similarly, as Judge Posner so eloquently put it in his Baskin decision, minorities trampled on by the 'democratic process' must and do have recourse to the courts, and that recourse is called constitutional law. See 766 F.3d at 671. And in Democracy and Distrust: A Theory of Judicial Review (1980), John Hart Ely wrote that the task of constitutional law 'has been and remains that of devising a way or ways of protecting minorities from majority tyranny that is not a flagrant contradiction of the principle of majority rule . . . .' Id. at 8.

For these reasons and for similar reasons noted by Circuit Courts in their recent decisions in favor of marriage equality, the 'democratic process' argument ought not stand as a basis for upholding bans on same-sex marriage. The popular vote of a majority undoubtedly plays an important part in our society, but votes cannot pass constitutional muster merely because they reflect the will of a given majority. If a vote deprives an individual or minority group of a fundamental right in a manner that offends the Constitution, that vote must be subject to judicial scrutiny and invalidation. The Constitution ' as interpreted by an independent federal judiciary ' must continue to serve its vital role as a protector of individual rights.'

It will be interesting to see whether the Sixth Circuit, or the Fifth, or any other, nonetheless were to uphold bans on same-sex marriage and, further, base that decision on the idea that the right to marry should be determined by popular vote, with no recourse to the courts and constitutional law. And, of course, it will be beyond interesting to see how the Supreme Court ultimately decides the issue. ”'

Frank Gulino, Of Counsel to the firm of Silver & Kelmachter, LLP, in New York City, is a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers.

'

'

Cert. Denied!

On the first day of its new Term, the Supreme Court declined to take up any of the cases before it in which state same-sex marriage bans had been struck down by lower courts. To the surprise of many Court watchers, the Justices denied certiorari in the cases, which stemmed from the Fourth, Seventh and Tenth Circuits. See Bostic v. Schaefer , 760 F.3d 352 (4th Cir. July 28, 2014), cert. denied , 2014 WL 3924685 (U.S. Oct. 6, 2014) (No. 14-153), 2014 WL 4230092 (U.S. Oct. 6, 2014) (No. 14-225) & 2014 WL 4354536 (U.S. Oct. 6, 2014) (No. 14-251); Baskin v. Bogan (consolidated with Wolf v. Walker), 766 F.3d 648 (7th Cir. 2014), cert. denied, 2014 WL 4425162, 4425163 (U.S. Oct. 6, 2014) (Nos. 14-277, 14-278); Kitchen v. Herbert , 755 F.3d 1193 (10th Cir. June 25, 2014), cert. denied , 2014 WL 3841263 (U.S. Oct. 6, 2014) (No. 14-124); Bishop v. Smith , 760 F.3d 1070 (10th Cir. July 18, 2014), cert. denied , 2014 WL 3854318 (U.S. Oct. 6, 2014) (No. 14-136). As a result, same-sex couples were immediately able to marry in five more states: Indiana, Oklahoma, Utah, Virginia and Wisconsin. ”

Marriage Equality Comes to (Most of) the Fourth, Seventh, Ninth & Tenth Circuits

The day after the Supreme Court's denials of certiorari, the Ninth Circuit issued a ruling of its own, striking down bans on same-sex marriage in Idaho and Nevada. Latta v. Otter, Nos. 14-35420 & 14-35421, 2014 WL 4977682 (9th Cir. Oct. 7, 2014). In so doing, the Court of Appeals both affirmed a district court ruling that had invalidated Idaho's ban and reversed a trial court decision ' rendered before the Supreme Court's landmark decision in United States v. Windsor , 133 S. Ct. 2675 (2013) ' that had upheld the ban in Nevada. Like the other courts that had overturned same-sex marriage bans, the Ninth Circuit relied in part on Windsor. In its unanimous opinion, the three-judge panel concluded, inter alia, that

[i]n extending the benefits of marriage only to people who have the capacity
to procreate, while denying those same benefits to people who already have
children, Idaho and Nevada materially harm and demean same-sex couples and
their children. . . . Windsor, 133 S. Ct. at 2694. Denying children resources and
stigmatizing their families on this basis is 'illogical and unjust.' . . . It is
counterproductive, and it is unconstitutional.

Latta, 2014 WL 4977682, at *8 (footnote and citation omitted). ”

Almost immediately, Justice Anthony Kennedy, as Circuit Justice, granted the State of Idaho's request for a stay of the ruling, pending further appeal. The stay did not apply to the State of Nevada, which chose not to appeal from the Ninth Circuit ruling, thus permitting same-sex marriages to go forward there. A week later, Idaho officials chose to end their appeal, too, and the first same-sex marriage ceremonies in that conservative state were performed on October 15. But then those same officials reversed course, and on October 21, Idaho appealed the decision of the three-judge panel in Latta, petitioning the Ninth Circuit for a hearing en banc. The following day, Alaska also asked the same court for an en banc hearing, days after legal same-sex marriages had begun in the state in the wake of both the Latta decision and the trial court ruling that struck down Alaska's ban on same-sex marriage in Hamby v. Parnell, No. 3:14-cv-000089, 2014 WL 5089399 (D. Alaska Oct. 12, 2014).

Within two weeks of the Supreme Court's denial of certiorari in the cases from the Fourth, Seventh and Tenth Circuits, as well as the Ninth Circuit's decision, the states in which same-sex marriage is legal had jumped from 19 to more than 30. As of October 17, nearly all of the states in the four affected circuits allowed same-sex couples to marry:

In the Fourth Circuit, only one state ' South Carolina ' refused to legalize same-sex marriage, resisting the appellate court's Bostic decision. And among the states within the Ninth Circuit, notwithstanding the applications for an en banc hearing by Idaho and Alaska, only Montana maintained its ban on gay marriage.

There was also one state in the Tenth Circuit ' Kansas ' that resisted the Court of Appeals' pro-marriage equality rulings in Kitchen and Bishop. On October 31, a federal trial court heard arguments on plaintiffs' motion for an injunction to stop Kansas from enforcing its ban on same-sex marriage. Marie v. Moser, No. 14 cv 2518 (D. Kan.). Further complicating matters in Kansas, a state trial judge handed down an administrative order permitting the issuance of marriage licenses to same-sex couples in one county, based on the Tenth Circuit's rulings in'Kitchen and Bishop and the U.S. Supreme Court's denial of certiorari in those cases. After one same-sex couple was issued a marriage license, the Supreme Court of Kansas temporarily stayed the administrative order pending adjudication of the State's petition seeking vacatur of that order. State v. Moriarity, No. 112,590 (Kan. Oct. 10, 2014). The court scheduled oral arguments on the petition for November 6. '

Will the Sixth Circuit Uphold Bans on Same-sex Marriage, Creating a Circuit Split?

Characteristically, the Justices gave no reason for their decision to dodge the issue of whether states may constitutionally ban same-sex marriage. Speculation abounded as to why the Court had sidestepped the issue. But perhaps the simplest explanation was that offered in a remark made by Justice Ruth Bader Ginsburg shortly before the start of the Court's Term. She said in September that for the Justices there is 'no need . . . to rush' unless a split emerges among the Circuit Courts and one of them decides to uphold a state ban on same-sex marriage. In mid-October, Justice Ginsburg similarly remarked that in the absence of a circuit split, 'there is no crying need for [the Court] to step in' on the issue of same-sex marriage.

The circuit split that might lead to Supreme Court intervention may yet emerge during the Court's'current'Term. To be sure, even as the Justices denied certiorari in the same-sex marriage cases before it, at least one other federal court of appeals ' the Sixth Circuit ' was poised to decide cases in which trial courts had struck down bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. Based upon the tenor of questions by the three-judge panel that heard oral arguments in those cases, analysts have suggested that the Sixth Circuit may well uphold bans on gay marriage in the states within it. See, e.g., Mark Joseph Stern, The 6th Circuit Looks Poised to Uphold Gay Marriage Bans'for 'Democracy,' Aug. 7, 2014,'http://slate.me/1wXXpZN.

In particular, the questions of Judge Jeffrey Sutton, a George W. Bush appointee and former law clerk to Justice Antonin Scalia, seemed to portend a decision by the Sixth Circuit in favor of state same-sex marriage bans. During oral argument on August 6, Judge Sutton suggested that the issue of same-sex marriage is better left to the democratic process ' the vote of the people ' and not to a handful of judges:

I would've thought the best way to get respect and dignity [for the marriage of same-sex couples] is through the democratic process. . . . Don't you think you're more likely to change hearts and minds through the democratic process than you are through a decision by five justices of the U.S. Supreme Court?

Id. If the prognosticators are correct, and the Sixth Circuit were to uphold same-sex marriage bans, that would indeed create the sort of split among the circuits that just might get the Justices to grant certiorari. And the high Court would finally have to decide whether states may deny same-sex couples the right to marry without running afoul of the federal Constitution.' ””'

Leave it to the 'Democratic Process': Some Courts Uphold Same-sex Marriage Bans '

If the Sixth Circuit were to uphold the same-sex marriage bans before it on the theory suggested by Judge Sutton ' that deference must be paid to the popular votes that put them in place ' it would not be the first federal court to reach that conclusion. The same 'leave it to the democratic process' argument was relied upon by the federal trial judge who upheld Louisiana's ban on same-sex marriage in Robicheaux v. Caldwell , 2 F. Supp. 3d 910 (E.D. La. 2014) (holding that the state's same-sex marriage ban 'is reasonably anchored to the democratic process').

Less than a month after the Sixth Circuit oral arguments, Judge Martin Feldman ruled in Robicheaux that the State of Louisiana has a legitimate interest in 'linking children to an intact family formed by their biological parents' and that fundamental social change, such as the recognition of same-sex marriage, is 'better cultivated through democratic consensus' than through the courts. Id. at 919. Indeed, Judge Feldman wrote that he could not be indifferent to what he called the unknown and potentially 'imprudent consequences' of judicially legalizing same-sex marriage when the issue can be decided in 'the arena of democratic debate.' Id. at 926.

Judge Feldman acknowledged that his ruling came after a nearly unbroken skein of more than 40 decisions by federal and state courts that had invalidated state same-sex marriage bans in the wake of Windsor. He cited only one post-Windsor federal decision ' also from Louisiana ' in which a challenge to a state same-sex marriage ban was dismissed: Merritt v. Attorney General, 2013 U.S. Dist. LEXIS 162583 (M.D. La. Nov. 14, 2013) (dismissing as frivolous a complaint by a pro se detainee in Louisiana's mental health system who alleged that the state's marriage ban violated his rights). In addition, a Tennessee state court had recently refused to grant a divorce to a same-sex couple who had been legally married in Iowa.' Borman v. Pyles-Borman, No. 2014CV36 (Tenn. Cir. Ct. Aug. 5, 2014) (unpublished).

Attorneys representing the same-sex couple plaintiffs in Robicheaux promptly noticed an appeal from Judge Feldman's decision, and the Fifth Circuit has scheduled oral argument for January 5, 2015. On the same day, the court will also hear argument on the appeal by the State of Texas in De Leon v. Perry , 975 F. Supp. 2d 632 (W.D. Tex. 2014) (striking down the state's same-sex marriage ban based on Windsor). '

In his Robicheaux ruling, Judge Feldman was clearly undeterred by the trend toward marriage equality evidenced by the long line of pro-same-sex marriage decisions since Windsor. So was District Judge Juan P'rez-Gim'nez when he dismissed a lawsuit that challenged Puerto Rico's ban on same-sex marriage in Conde-Vidal v. Garcia-Padilla, Civ. No. 14-1253, 2014 WL 5361987 (D.P.R. Oct. 21, 2014) (relying on Baker v. Nelson , 409 U.S. 810 (1972)).

In Baker, the Supreme Court ' for what it called 'want of a substantial federal question' ' had summarily rejected an appeal by a same-sex couple who challenged Minnesota's ban on gay marriage. And though Baker has never been explicitly overruled, its vitality as precedent on the issue of same-sex marriage has been questioned often by lower courts, especially in light of more recent decisions ' Windsor aside ' in which the Supreme Court has struck down laws that discriminated against the individual rights of gays and lesbians. See , e.g. , Romer v. Evans , 517 U.S. 620 (1996).

Nonetheless, Judge P'rez-Gim'nez did grant dismissal of the Conde-Vidal complaint based on the questionable precedential value of Baker, holding that plaintiffs' complaint had failed to raise a substantial federal question. But he did not limit his opinion to that ruling. Rather, in the opinion's 'Conclusion' ' a section usually reserved for a pithy recitation of a court's ruling ' the judge expounded his personal view of the merits (or lack of merits) of plaintiffs' claim, noting that '[t]raditional marriage is 'exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship' . . . .' 2014 WL 5361987, at *10 (quoting Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting)). Judge P'rez-Gim'nez also gave a nod to the 'democratic process' argument, declaring that 'one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law.' 2014 WL 5361987, at *11. And he concluded that '[i]t is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . .' Id. (quoting Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014) (per Kennedy, J.)). On October 28, a week after the dismissal order was handed down, plaintiffs filed a notice of appeal to the First Circuit.'

The question now is whether the Sixth Circuit, or one of the other U.S. Circuit Courts that has same-sex marriage cases pending before it, will ' like the federal trial courts in Louisiana and Puerto Rico ' also buck the nationwide trend and send the issue to the high Court. And in the event that the Sixth Circuit does uphold same-sex marriage bans, an ancillary question arises: Whether that decision will be based upon the notion that the people in each state ' through the 'democratic process,' i.e., the popular vote ' should be able to determine the definition of marriage and, by extension, determine who has the right to marry. The suggestion by Judge Sutton that the argument has merit ' together with the reliance on the argument by the trial judges in Robicheaux and Conde-Vidal ' makes that a real possibility. And it merits an examination of how that argument has been treated by the Circuit Courts whose same-sex marriage decisions the Supreme Court has let stand (and by the Ninth Circuit, whose decision has yet to be appealed).

The 'Democratic Process' Argument in the Fourth, Seventh and Tenth Circuits (and the Ninth)

In the Fourth, Seventh and Tenth Circuit decisions that have struck down state bans on gay marriage, the appellate courts ' like the trial courts before them ' relied substantially on the high Court's decision in Windsor. (In previous issues of 'The Matrimonial Strategist,' we examined the impact of Windsor in articles focusing on federal trial courts that used that Supreme Court decision as the basis for toppling state same-sex marriage bans. See Gulino, The March Toward Marriage Equality in a Post-Windsor Nation, 31 The Matrimonial Strategist 3 (No. 12 Dec. 2013) and its sequel: Continuing the Discussion, 32 The Matrimonial Strategist 1 (No. 6 June 2014).)

But those Circuit Courts did not merely rely on Windsor and other precedent to support their rulings. They also specifically addressed ' and rejected ' the argument made by the federal trial courts in Louisiana and Puerto Rico that have upheld bans on same-sex marriage, the same argument suggested by Judge Sutton during oral argument before the Sixth Circuit, i.e., that the 'democratic process' ' the vote of the people ' is the proper vehicle for determining who has the right to marry.

In Bostic, for instance, the Fourth Circuit noted that 'Americans' ability to speak with their votes is essential to our democracy. But the people's will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry.' 760 F.3d at 379. The court noted further that the 'very purpose' of the Bill of Rights and the Fourteenth Amendment is

to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Id. (quoting W.Va. Bd. of Educ. v. Barnette , 319 U.S. 624, 638 (1943)). '

Judge Richard Posner, writing for the Seventh Circuit in Baskin, similarly rejected an argument, made by the State of Wisconsin, that its ban on same-sex marriage was 'the outcome of a democratic process ' the enactment of a constitutional ban by popular vote.' 766 F.3d at 671. He was succinct in his dismissal of the argument, noting that '[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.' Id.' '

The Tenth Circuit, too, addressed and set aside the argument in support of Utah's ban on same-sex marriage that stressed 'the value of democratic decision-making and the benefits of federalism in allowing states to serve as laboratories for the rules concerning marriage.' Kitchen, 755 F.3d at 1228. As Judge Carlos Lucero wrote for the majority:

Plaintiffs in this case have convinced us that [the Utah ban on same-sex marriage] violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental'rights are not matters for opinion polls or the ballot box.

Id.

And when the Ninth Circuit joined its sister courts, striking down the state same-sex marriage bans before it in October, it also dealt with and rejected a virtually identical argument by the defendants opposing marriage equality:

[Defendants] argue that the population of each state is entitled to exercise its democratic will in regulating marriage as it sees fit [and that] [e]ach state 'has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.' . . . True enough. But a primary purpose of the Constitution is to protect minorities from oppression by majorities. As Windsor itself made clear, 'state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.'

Latta, 2014 WL 4977682, at *9 (citations omitted).

A Majority Vote Cannot Be Enough: It's Called Constitutional Law

The idea that the fundamental rights of minorities should not be grist for the ballot box is not a new one. Indeed, last year in 'The Matrimonial Strategist” prior to the Windsor decision ' we argued the case against popular referenda as a vehicle for determining the fundamental right to marry. See Gulino, For Better or for Worse: The Case Against Referenda on Marriage Equality, 31 The Matrimonial Strategist 1 (No. 1 Jan. 2013). As we noted there (see id. at 8), James Madison wrote of the danger to a weaker minority posed by what Alexis de Tocqueville called the 'tyranny of the majority.” 'If a majority be united by a common interest,' Madison wrote, 'the rights of the minority will be insecure.' The Federalist No. LI (Feb. 8, 1788), in The Complete Madison 181 (Saul K. Padover ed. 1988).' Society must provide against that 'evil,' Madison continued, for '[i]n a society [in] which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger . . . .' Id. at 181-82.'

Even author Ayn Rand, a darling of many on the conservative right, long ago noted the inappropriateness of determining individual rights through popular election:

Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual).

Ayn Rand, Collectivized 'Rights,' June 1963.'

To be sure, as the Fourth Circuit noted in Bostic, the ability of Americans to speak with their votes is essential to our democracy. But as the same court also noted, the Bill of Rights and the Fourteenth Amendment stand for the purpose of removing decisions on fundamental rights from the political process. See 760 F.3d at 379. Similarly, as Judge Posner so eloquently put it in his Baskin decision, minorities trampled on by the 'democratic process' must and do have recourse to the courts, and that recourse is called constitutional law. See 766 F.3d at 671. And in Democracy and Distrust: A Theory of Judicial Review (1980), John Hart Ely wrote that the task of constitutional law 'has been and remains that of devising a way or ways of protecting minorities from majority tyranny that is not a flagrant contradiction of the principle of majority rule . . . .' Id. at 8.

For these reasons and for similar reasons noted by Circuit Courts in their recent decisions in favor of marriage equality, the 'democratic process' argument ought not stand as a basis for upholding bans on same-sex marriage. The popular vote of a majority undoubtedly plays an important part in our society, but votes cannot pass constitutional muster merely because they reflect the will of a given majority. If a vote deprives an individual or minority group of a fundamental right in a manner that offends the Constitution, that vote must be subject to judicial scrutiny and invalidation. The Constitution ' as interpreted by an independent federal judiciary ' must continue to serve its vital role as a protector of individual rights.'

It will be interesting to see whether the Sixth Circuit, or the Fifth, or any other, nonetheless were to uphold bans on same-sex marriage and, further, base that decision on the idea that the right to marry should be determined by popular vote, with no recourse to the courts and constitutional law. And, of course, it will be beyond interesting to see how the Supreme Court ultimately decides the issue. ”'

Frank Gulino, Of Counsel to the firm of Silver & Kelmachter, LLP, in New York City, is a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers.

'

'