September 3, 2014
From diverse US judges, one opinion on gay marriage
The Washington Post (*)
‘Momentum effect’ leads to string of victories for supporters of same-sex unions
WASHINGTON — The headlines are so consistent, they could be written by a computer: “Judge strikes down state ban on gay marriage.”
But the federal judges who have supplied an unbroken wave of victories across the country to supporters of same-sex marriage are more diverse than their rulings would suggest: white and black, gay and straight, nominated by Democrats (most of them) and chosen by Republicans (a few of them).
In Michigan, the message was delivered by a judge who took the bench while Ronald Reagan was president. In Utah, it came from someone who had barely celebrated his first anniversary as a judge.
What they share is a judicial view that would have been unthinkable a generation ago: the Constitution requires that the fundamental right to marry be extended to gay couples.
In Pennsylvania, where the state’s ban was struck down last week, US District Judge John E. Jones said he kept all 12 of the previous opinions by other federal courts on his desk when deciding his case.
District courts are the trial level of the federal judiciary, and, unlike rulings from appeals courts and the Supreme Court, the decisions of district judges do not create precedents for others to follow.
“But there has to be some kind of momentum effect” to the string of nearly identical rulings, said William Baude, a former clerk to Chief Justice John Roberts who teaches law at the University of Chicago and has closely followed the decisions.
Cases are randomly assigned, but nine of the district judges who have struck down the bans were appointed by either President Barack Obama or former president Bill Clinton. Baude theorizes that the unanimity of the decisions may be a result of quick action by judges who strongly believe that the constitutional right to marriage must extend to gay couples.
Judges who disagree may be moving more slowly, he said. After all the previous decisions have gone a certain way, Baude said, “if you’re someone on the other side, you’ve got to think there’s a decent chance you’re going to be overturned or end up being on the wrong side of history.”
Since the Supreme Court ruled last year that the federal government must recognize same-sex marriages performed in states where they are legal, there has been a race to have state bans declared illegal.
Nineteen states and the District of Columbia allow same-sex marriages, and there are lawsuits in every state, except one, that bars the unions. Challengers have been successful in each case that has been decided, including in conservative states such as Texas, Oklahoma and Utah.
As a result of legislative and judicial decisions — some written with sweeping, history-making language — gay marriages are allowed in every state on the Eastern Seaboard from Maryland to Maine. On the other coast, gay US citizens are free to marry from the Mexican border to the Canadian line.
“This is how the country is understanding this issue now,” said James Esseks, director of the ACLU’s Lesbian Gay Bisexual Transgender & AIDS Project. “When judge after judge after judge says the Constitution requires it, that makes a difference to Americans who know this country is governed by the Constitution and the law.”
But supporters of the marriage bans say it’s important to remember that these judges have the first word, not the last.
“They can have all the district judges they want,” said John Eastman, a law professor at Chapman University in Orange, Calif., and chairman of the board of the National Organization for Marriage.
“I quite frankly think they’re building up a big head of steam for the Supreme Court to slap them down.”
Jones, the judge in Pennsylvania, has made controversial decisions before. A 2005 ruling that teaching the theory of “intelligent design” in public schools violated the separation of church and state brought death threats to him and his family.
He is a protegé of former Governor Tom Ridge and a onetime Republican congressional candidate whose judicial nomination was supported by then-Senator Rick Santorum, R. Jones braced for “incoming fire” for last week’s decision, he said in a telephone interview, “but the response has been muted.”
The judges’ rulings have come since the Supreme Court’s decision in U.S. v. Windsor last year struck part of the federal Defence of Marriage Act.
On the one hand, Supreme Court Justice Anthony Kennedy said in the majority opinion that states traditionally have defined the requirements for marriage. But on the other hand, he dismissed arguments about procreation and tradition that have been used to justify bans on same-sex marriage.
More than the federalism argument, district court judges have found the lesson of Windsor to be Kennedy’s view that non-recognition of same-sex marriages by the government imposes “a disadvantage, a separate status, and so a stigma upon” the couples and their children.
The judges have also widely cited Justice Antonin Scalia’s fiery dissent in the Windsor case. Scalia said the reasoning in Kennedy’s opinion “arms well every challenger to a state law.”
“I thought Justice Scalia called it the way he saw it,” Jones said in the interview. “I think he was right and very prescient” about how the Supreme Court will act when it receives a case that directly asks the constitutional question.
Like some of the other district court rulings, Jones’ decision employs sweeping language. He concludes his 39-page ruling: “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”
Jones said that while he did not think the case was difficult to decide, he “agonized” over how to write his opinion.
“To say I thought it was historical would make me look like an egomaniac,” he said. But unlike other opinions that might be read only by lawyers, “I knew this would be read by a broader audience, and I wanted to take a little more time” to make sure it was more accessible.
Other decisions have had a personal tone. In Virginia, Judge Arenda Wright Allen, the commonwealth’s first female African-American federal jurist, began her opinion with a 180-word statement from another African-American woman from Virginia — Mildred Loving. Loving was married to a white man, and it was their suit challenging Virginia law that led the Supreme Court in 1967 to declare state bans on interracial marriage unconstitutional.
Wright Allen’s opinion, which closed by quoting Abraham Lincoln, was an unapologetic defence of a federal judge’s duty to strike democratically approved laws that violate constitutional standards. “When core civil rights are at stake, the judiciary must act,” wrote the judge, who was nominated by Obama in 2011.
Conservative critics of the rulings say some of the decisions read more as policy statements than legal opinions, with flowery language that could be seen as being written for history books.
“Some of them think they are writing short stories,” Eastman said.
Esseks and other supporters of same-sex marriage think the rulings are eloquent. “What is being created is an environment in which the Supreme Court is going to be comfortable ruling for the freedom to marry,” he said.
The ruling by Jones is not being appealed and marriages have begun in Pennsylvania. But most of the other decisions are being contested, and the action will move to the next rung of the federal judiciary, the appeals courts.
A panel of the US Court of Appeals for the 10th Circuit in Denver already has heard arguments about the Utah and Oklahoma decisions. And three judges of the 4th Circuit in Richmond have heard the challenge to Wright Allen’s ruling.
It was unclear at those hearings whether the streak of victories for same-sex marriage proponents will continue. But the sharp sparring among the appellate judges makes it seem likely that the judicial unanimity will end.