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History in the Making in Missouri, But Not in Michigan

“I’m very honored to be here today because gentlemen, we’re in history. This is history in the making right here.”

The speaker was retired judge Vernon Scoville, and the gentlemen to whom he was speaking were John Kenny Rodricks and Robert Gann — the first same-sex couple to get married in Jackson County, Missouri (the southern part of Kansas City). The marriage took place yesterday, on the heels of a ruling in Lawson v Kelly by federal judge Ortrie Smith of the US District Court of Western Missouri striking down Missouri’s ban on same-sex marriage that came down just hours earlier.

It was quite a change from what happened the day before at the 6th US Circuit Court of Appeals.

In a ruling written by Judge Jeffrey Sutton for a 2-1 majority in DeBoer v Snyder, the 6th Circuit upheld similar bans on marriage equality in Ohio, Michigan, Kentucky, and Tennessee. In dissent, Judge Martha Craig (Cissy) Daughtrey summarized the majority’s two-part position quite briefly and bluntly as “first, “let the people decide” and, second, “give it time.” ” (pdf p. 61)

The old Board of Education for the Topeka School District would have loved it if SCOTUS had employed Sutton’s logic back in 1954. Imagine how it would have played out if the Supreme Court had said to the Brown family “sure, segregated schools aren’t exactly great, but don’t ask us to fix it — go elect a new school board or state legislature if you want justice.” Similarly, Governor Wallace would have been delighted to have a court affirm a give-it-time approach to doing away with Jim Crow. As Daughtrey later notes, Virginia employed this logic in Loving when defending their marriage laws banning interracial marriage, but SCOTUS declined to accept in.

Central to Sutton’s argument is Baker v Nelson, a one-line summary judgment by SCOTUS in 1972 as they declined to rule on a Minnesota marriage case because it did not raise a “substantial federal question.” In the eyes of Sutton, this is a huge deal, and it is still binding on lower courts as it has not been explicitly overturned by subsequent cases. Cue the facepalms in the chambers of dozens of other judges around the country, including especially Judge Friedman in Michigan who cited at length in his ruling in DeBoer from the 10th Circuit’s Kitchen v Herbert to explain why Baker is not controlling here (p 27, footnote 6).

Daughtrey pulled no punches in her dissent, taking down this line of illogic:

If I were in the majority here, I would have no difficulty in affirming the district court’s opinion in DeBoer. The record is rich with evidence that, as a pragmatic matter, completely refutes the state’s effort to defend the ban against same-sex marriage that is inherent in the marriage amendment. Moreover, the district court did a masterful job of supporting its legal conclusions. Upholding the decision would also control the resolution of the other five cases that were consolidated for purposes of this appeal.

Is a thorough explication of the legal basis for such a result appropriate? It is, of course. Is it necessary? In my judgment, it is not, given the excellent—even eloquent—opinion in DeBoer and in the opinions that have come from four other circuits in the last few months that have addressed the same issues involved here: [citations omitted]

I was very impressed with the district court ruling in DeBoer as well, especially with regard to the rich record of evidence it presented (reminiscent of Vaughn Walker in Perry) and I was as stunned as Daughtrey at how it was treated by Sutton. But let’s go back to Daughtrey, with a little emphasis added, as she turns her eye toward Baker . . .

If ever there was a legal “dead letter” emanating from the Supreme Court, Baker v. Nelson, 409 U.S. 810 (1972), is a prime candidate. It lacks only a stake through its heart. Nevertheless, the majority posits that we are bound by the Court’s aging one-line order denying review of an appeal from the Minnesota Supreme Court “for want of a substantial federal question.” As the majority notes, the question concerned the state’s refusal to issue a marriage license to a same-sex couple, but the decision came at a point in time when sodomy was legal in only one state in the country, Illinois, which had repealed its anti-sodomy statute in 1962. The Minnesota statute criminalizing same-sex intimate relations was not struck down until 2001, almost 30 years after Baker was announced.4 The Minnesota Supreme Court’s denial of relief to a same-sex couple in 1971 and the United States Supreme Court’s conclusion that there was no substantial federal question involved in the appeal thus is unsurprising. As the majority notes—not facetiously, one hopes—“that was then; this is now.”

At the same time, the majority argues that we are bound by the eleven words in the order, despite the Supreme Court silence on the matter in the 42 years since it was issued. There was no recognition of Baker in Romer v. Evans, 517 U.S. 620 (1996), nor in Lawrence v. Texas, 539 U.S. 558 (2003), and not in Windsor, despite the fact that the dissenting judge in the Second Circuit’s opinion in Windsor made the same argument that the majority makes in this case. See Windsor v. United States, 699 F.3d 169, 189, 192-95 (2d Cir. 2012) (Straub, J., dissenting in part and concurring in part). And although the argument was vigorously pressed by the DOMA proponents in their Supreme Court brief in Windsor,5 neither Justice Kennedy in his opinion for the court nor any of the four dissenting judges in their three separate opinions mentioned Baker. In addition, the order was not cited in the three orders of October 6, 2014, denying certiorari in Kitchen, Bostic, and Baskin. If this string of cases—Romer, Lawrence, Windsor, Kitchen, Bostic, and Baskin—does not represent the Court’s overruling of Baker sub silentio, it certainly creates the “doctrinal development” that frees the lower courts from the strictures of a summary disposition by the Supreme Court. See Hicks v. Miranda, 422 U.S. 332, 344 (1975) (internal quotation marks and citation omitted).

SCOTUS affirmed a lower court ruling that explicitly rejected Sutton’s argument, and yet Sutton makes it anyway.

Back in Kansas City, Ortrie Smith either anticipated Sutton’s argument when he drafted his ruling in Lawson, or slapped his forehead on Thursday night and tweaked his draft a bit overnight before releasing it the next morning, to give the Baker case an extra slap. Said Smith:

The Court concludes doctrinal developments indicate the Supreme Court’s summary ruling is not reliable or binding. Since its summary disposition in Baker, the Supreme Court has issued additional decisions discussing the right to marry. E.g., Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978). The Court has also issued decisions addressing laws that draw distinctions between homosexual and heterosexual conduct or homosexuals and heterosexuals as a class. E.g., Lawrence v. Texas, 123 S. Ct. 2472 (2003); Romer v. Evans, 517 U.S. 620 (1996). As the Second Circuit observed in Windsor, “[w]hen Baker was decided in 1971, ‘intermediate scrutiny’ was not yet in the Court’s vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect.” Windsor v. United States, 699 F.3d 169, 179 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2014).

Given that the Second Circuit concluded Baker was not binding, and that the Second Circuit was later affirmed in in Windsor, “[t]he Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law.” Bostic v. Schaefer, 760 F.3d 352, 374 (4 th Cir. 2014), cert. denied, 2014 WL 3924685 (U.S. 2014). The undersigned joins those courts that have similarly determined that doctrinal developments have superseded Baker and that Baker is not binding. E.g., Latta v. Otter, 2014 WL 4977682 at *3 (9 th Cir. Oct. 7, 2014); Baskin v. Bogan, 766 F.3d 648, 659-60 (7 th Cir. 2014), cert. denied, 2014 WL 4425162 (U.S. 2014); Bostic, 760 F.3d at 374-75; Kitchen v. Herbert, 755 F.3d 1193, 1205-06 (10 th Cir.), cert. denied, 2014 WL 3841263 (U.S. 2014); but see Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1 st Cir. 2012), cert. denied, 133 S. Ct. 2887 (2013) (“Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.”). 5

The other place where Smith takes on Sutton’s logic directly — whether by anticipating it or in a last minute revision — is near the end, on the topic of “the will of the people” (emphasis added):

The Court does not take lightly a request to declare that a state law is unconstitutional. Statutes are passed by the duly elected representatives of the people. Article I, section 33 constitutes the direct expression of the people’s will. It is not on a whim that the Court supplants the will of the voters or the decisions of the legislature.

But it should not be forgotten that the Constitution is also an expression of the people’s will. Indeed, it is the paramount expression of the people’s will; it cannot easily be cast aside or circumvented by a vote of the citizens of a single state. Just as Missouri citizens cannot abridge the First Amendment by amending the Missouri Constitution, they cannot abridge the Fourteenth Amendment in that manner.

This is what justice looks like. Those whose rights have been abridged should not have to depend on electoral results to have their rights upheld, nor should justice be delayed. As Daughtrey concludes,

If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

To Judge Scoville, Judge Smith, and Judge Daughtrey, I have just two things to say: Amen, and thanks.

_______

h/t for the photo to Roger Sayles aka Serfs Up! and used under Creative Commons Attribution-NoDerivs 2.0 Generic license.

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History in the Making in Missouri, But Not in Michigan

“I’m very honored to be here today because gentlemen, we’re in history. This is history in the making right here.”

The speaker was retired judge Vernon Scoville, and the gentlemen to whom he was speaking were John Kenny Rodricks and Robert Gann — the first same-sex couple to get married in Jackson County, Missouri (the southern part of Kansas City). The marriage took place yesterday, on the heels of a ruling in Lawson v Kelly by federal judge Ortrie Smith of the US District Court of Western Missouri striking down Missouri’s ban on same-sex marriage that came down just hours earlier.

It was quite a change from what happened the day before at the 6th US Circuit Court of Appeals.

In a ruling written by Judge Jeffrey Sutton for a 2-1 majority in DeBoer v Snyder, the 6th Circuit upheld similar bans on marriage equality in Ohio, Michigan, Kentucky, and Tennessee. In dissent, Judge Martha Craig (Cissy) Daughtrey summarized the majority’s two-part position quite briefly and bluntly as “first, “let the people decide” and, second, “give it time.” ” (pdf p. 61)

The old Board of Education for the Topeka School District would have loved it if SCOTUS had employed Sutton’s logic back in 1954. Imagine how it would have played out if the Supreme Court had said to the Brown family “sure, segregated schools aren’t exactly great, but don’t ask us to fix it — go elect a new school board or state legislature if you want justice.” Similarly, Governor Wallace would have been delighted to have a court affirm a give-it-time approach to doing away with Jim Crow. As Daughtrey later notes, Virginia employed this logic in Loving when defending their marriage laws banning interracial marriage, but SCOTUS declined to accept in.

Central to Sutton’s argument is Baker v Nelson, a one-line summary judgment by SCOTUS in 1972 as they declined to rule on a Minnesota marriage case because it did not raise a “substantial federal question.” In the eyes of Sutton, this is a huge deal, and it is still binding on lower courts as it has not been explicitly overturned by subsequent cases. Cue the facepalms in the chambers of dozens of other judges around the country, including especially Judge Friedman in Michigan who cited at length in his ruling in DeBoer from the 10th Circuit’s Kitchen v Herbert to explain why Baker is not controlling here (p 27, footnote 6).

Daughtrey pulled no punches in her dissent, taking down this line of illogic: (more…)

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Peterr

Peterr

I'm an ordained Lutheran pastor with a passion for language, progressive politics, and the intersection of people's inner sets of ideals and beliefs (aka "faith" to many) and their political actions. I mostly comment around here, but offer a weekly post or two as well. With the role that conservative Christianity plays in the current Republican politics, I believe that progressives ignore the dynamics of religion, religious language, and religiously-inspired actions at our own peril. I am also incensed at what the TheoCons have done to the public impression of Christianity, and don't want their twisted version of it to go unchallenged in the wider world. I'm a midwesterner, now living in the Kansas City area, but also spent ten years living in the SF Bay area. I'm married to a wonderful microbiologist (she's wonderful all the way around, not just at science) and have a great little Kid, for whom I am the primary caretaker these days. I love the discussions around here, especially the combination of humor and seriousness that lets us take on incredibly tough stuff while keeping it all in perspective and treating one another with respect.

And Preview is my friend.