Wednesday, June 11, 2014

Marriage Law Digest (May 2014)

May 2014 Case Summaries
William C. Duncan, Editor
1)      WRIGHT V. ARKANSAS, Case No. 60CV-13-2662, Arkansas Circuit Court of Pulaski County, May 9, 2014 (same-sex marriage).
2)      LATTA V. OTTER, Case No. 1:13-cv-00482-CWD, U.S. District Court, District of Idaho, May 13, 2014 (same-sex marriage).
3)      GEIGER V. KITZHABER, Case No. 6:13-cv-01834, U.S. District Court, District of Oregon, May 19, 2014 (same-sex marriage).
4)      EVANS V. UTAH, Case No. 2:14CV55DAK, U.S. District Court, District of Utah, May 19, 2014 (same-sex marriage).
5)      WHITEWOOD V. WOLF, 1:13-CV-1861, U.S. District Court, Middle District of Pennsylvania, May 20, 2014 (same-sex marriage).
6)      JASON P. V. DANIELLE S., B248629, California Court of Appeals, Second District, May 14, 2014 (paternity of sperm donor).
Recent Law Review Articles & Books (interstate recognition, religious marriage, conscience, Australia, religious solemnization). 

Case No. 60CV-13-2662
Arkansas Circuit Court of Pulaski County
May 9, 2014

Same-sex couples challenged an amendment to Arkansas Constitution defining marriage as the union of a man and a woman.

The court began by holding “Arkansas marriage laws implicate both a fundamental right and the rights of a suspect or quasi-suspect class.” The court referenced recent federal district court decisions and said they led “to the undeniable conclusion that same-sex couples fulfill all four factors to be considered a suspect or quasi-suspect classification. The court said that the level of scrutiny, however, was unimportant because the state’s marriage laws “do not advance any conceivable legitimate state interest” under the lowest standard. The court characterized the marriage amendment as “an unconstitutional attempt to narrow the definition of equality” and said “[t]he exclusion of a minority for no rational reason is a dangerous precedent.” The court said the state’s interest in linking marriage and procreation was “eerily similar” to justifications for laws prohibiting interracial marriage. The court also said: “Same-sex couples are a morally disliked minority and the constitutional amendment to ban same-sex marriage is driven by animus rather than a rational basis.” The court said the state’s interest in procreation as it relates to marriage was irrelevant “because Arkansas’s marriage laws do not prevent same-sex couples from having children” so the law’s effect “is harming those children of same-sex couples who are denied the protection and stability of parents who are legally married.” The court also said: “The fact that a particular discrimination has been ‘traditional’ is even more of a reason to be skeptical of its rationality.” The court also suggested the laws violated the right of privacy since, “[t]he difference between opposite-sex and same-sex families is within the privacy of their homes.”

Case No. 1:13-cv-00482-CWD
U.S. District Court, District of Idaho
May 13, 2014

Same-sex couples sued Idaho alleging the state’s marriage laws violated the U.S. Constitution.

The court said that although an earlier U.S. Supreme Court decision dismissing a claim for same-sex marriage “speaks to the precise issues presented in this case,” the court finds “its guidance is no longer binding” because the “Supreme Court’s due process and equal protection jurisprudence has developed significantly” and in the Windsor decision “the Court dramatically changed tone with regard to laws that withhold marriage benefits from same-sex couples.” The court said the Supreme Court “has framed” the right to marry “in remarkably broad terms.” It said that since “a fast-growing number of states now recognize that same-sex and opposite-sex marriages are equal” and because “the right to marry is an individual right, belonging to all,” the “substance of that right for gay and lesbian individuals” cannot be that they can marry as marriage has always been understood because “this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State.” Thus, Idaho’s laws “impermissibly infringe on Plaintiffs’ fundamental right to marry.” The court also found the laws “allow heterosexuals, but not homosexuals, to marry and thus clearly discriminate on the basis of sexual orientation” but do “not prefer one gender over the other” and so are “facially gender neutral” and “there is no evidence that they were motivated by a gender discriminatory purpose.” The court said that under Ninth Circuit precedent “this court is bound to apply Windsor’s heightened scrutiny to Idaho’s Marriage Laws” and, the court said the U.S. Supreme Court had “accepted [this argument] by implication.” The court said it could not infer “a particular purpose or intent for the provision” since it was approved by a large majority of Idaho voters but also that “it is obvious that Idaho’s Marriage Laws purposefully discriminate on the basis of sexual orientation” and though the laws “were motivated, in part, by important governmental interests, their history demonstrates that moral disapproval of homosexuality was an underlying, animating factor.” The court also found “the link between the interest in protecting children and Idaho’s Marriage Laws is so attenuated that it is not rational” for four reasons: (1) “civil marriage in Idaho is and has long has been a designedly consent-based institution” which is “wholly indifferent” to couples’ motives related to children, (2) the state “does not condition marriage licenses or marital benefits on heterosexual couples’ ability of desire to have children,” (3) “Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal parents,” and (4) “child welfare rationales disregard the welfare of children with same-sex parents.” The court also found “defending the State’s fiscal resources is not an actual purpose of any law challenged in this case” and the laws “do not create new benefits for naturally procreative couples” and there “is no showing that forbidding same-sex marriages makes naturally procreative couples more likely to marry, let alone stay married.” The court, finally, found that federalism could not justify the law where “individuals claim their state government has trampled their constitutional rights.”

Case No. 6:13-cv-01834-MC
U.S. District Court, District of Oregon
May 19, 2014

Same-sex couples challenged Oregon’s marriage law.

The court found Oregon’s “marriage laws discriminate based on sexual orientation, not gender” because “the ban does not treat gender differently at all.” The court said that the fact that laws apply equally to groups will make a classification valid unless the law “discriminate[s] based on suspect classes.” The court said “Oregon’s marriage laws place burdens upon same-gender couples that are not placed upon opposite-sex couples.” The court said that the law could not be justified by “tradition” since it “is simply not a legitimate purpose” and accepting that as a valid interest “would simply turn rational basis review into a rubber stamp condoning discrimination against longstanding, traditionally oppressed minority classes everywhere. The court also said that though “protecting children and promoting stable families is certainly a legitimate governmental interest, the state’s marriage laws do not advance this interest—they harm it” because by creating domestic partnerships “the legislature acknowledged that our communities depend on, and are strengthened by, strong, stable families of all types whether headed by gay, lesbian, or straight couples.” To the court, “so long as its current marriage laws stand,” the state “is forced to burden, demean, and harm gay and lesbian couples and their families.” The court rejected an interest in procreation, saying: “Opposite-gender couples will continue to choose to have children responsibly or not, and those considerations are not impacted in any way by whether same-gender couples are allowed to marry.”

Case No. 2:14-cv-00055-DAK
U.S. District Court, District of Utah
May 19, 2014

Same-sex couples who had obtained marriage license in the interim between a district court decision striking down Utah’s marriage law and the Supreme Court’s order of a stay on the district court decision challenged the state’s policy of waiting to affirm the validity of the marriages while the determination of the correctness of the original district court decision was litigated.

The court quoted United States v. Windsor, to hold that “the State’s decision to put same-sex marriages on hold, ‘deprive[s] some couples married under the laws of their State, but not other couples, of both rights and responsibilities’” and “the ‘principal effect’ of the State’s actions ‘is to identify a subset of state-sanctioned marriages and make them unequal’” so “Plaintiffs have demonstrated a liberty interest that inheres in the Due Process Clause.” The court said Utah’s marriage laws “were legal nullities at the time Plaintiffs were married” and that the state “issued and recognized Plaintiffs’ marriage licenses, which became valid under Utah law when the marriage.” The court also said there was “no harm to the State based on an inability to apply the marriage bans retroactively” because they can “stop any additional marriage from occurring.” The court said “the public is well served by having certainty about the status of Plaintiffs’ marriages.” The state had asked the court to “certify questions of law to the Utah Supreme Court on whether Utah law gives plaintiffs “vested rights in their marriages” but the court refused saying this request “appears to be a delay tactic” and “Utah law is clear and not ultimately controlling of the case before this court.”

Case 1:13-cv-1861
U.S. District Court, Middle District of Pennsylvania
May 20, 2014

Same-sex couples challenged Pennsylvania’s marriage law on federal constitutional grounds.

The court first said the dismissal of claims for same-sex marriage in Baker v. Nelson by the U.S. Supreme Court had no “precedential value in light of doctrinal developments in the areas of constitutional due process and equal protection.” The court held “the fundamental right to marry is a personal right . . . not a new right, but is rather a right that these individuals have always been guaranteed by the United States Constitution” and “Pennsylvania’s non-recognition law robs those of the Plaintiffs who are already married of their fundamental liberty interest in the legal recognition of their marriages in Pennsylvania.” The court said heightened scrutiny analysis should be applied to the law because there was not a dispute between the parties “that sexual orientation is mutable or bears a relation to ability to participate in society,” and because same-sex couples lack political power since “there remains an absence of statutory, anti-discrimination protections which may indicate continuing political weakness.” The court concluded that it was “unable to fathom an ingenious defense saving the Marriage Laws from being invalidated under this more-searching standard.”

California Court of Appeals, Second District
May 14, 2014

A father, who had been cohabiting with the mother of his child conceived through in vitro fertilization for which the father had provided sperm, filed an action to establish paternity. The trial court rejected the claim relying on California precedent that a man is not a father if he provided sperm to a medical doctor who used it to create a child through assisted reproduction.

The appeals court said the rule the trial court had relied on had been
“undermined” by a subsequent decision involving a lesbian couple, one of whom had donated an egg for assisted reproduction, where the California Supreme Court recognized both women could be mothers. The court said that here the law “should be interpreted only to preclude a sperm donor from establishing paternity based upon his biological connection to the child, and does not preclude him from establishing that he is a presumed parent . . . based upon post-birth conduct.” The court thus said, “a sperm donor who had established a familial relationship with the child, and has demonstrated a commitment to the child and the child’s welfare, can be found to be a presumed parent even though he could not establish paternity based upon his biological connection to the child.” The court said the father could not use the legal theory of estoppel because the statute preventing paternity claims by sperm donors “was enacted to allow both married and unmarried women an opportunity to conceive a child through donated sperm without fear that the donor will claim paternity by virtue of biology, and to allow men to donate sperm without fear of liability for child support based upon his biological connection to the child.” The court remanded to the trial court to determine whether the father’s actions made him a “presumed parent.”


Jeffrey A. Redding, Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships __ University of Miami Law Review __ (forthcoming 2014) at Describing a variety of scenarios where a state declines to recognize an out-of-state marriage for all purposes.

Akiva A. Miller, The Policing of Religious Marriage Prohibitions in Israel: Religion, State, and Information Technology (May 1, 2014) at Describes Israeli efforts to enforce religious law on marriage.

Helen M. Alvare, A ‘Bare . . . Purpose to Harm’? Marriage and Catholic Conscience Post-Windsor George Mason Law & Economics Research Paper No. 14-14 at Describes how the Supreme Court’s decision on the Defense of Marriage Act affects the ability of people to act on the belief that marriage is the union of a husband and wife.

Patrick Parkinson & Nicholas Aroney, The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same-Sex Marriage Case (May 9, 2014) at Describes the recent Australian Supreme Court case on the power of jurisdictions to redefine marriage.

Drew Stevens, By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage 63 Emory Law Journal 979 (2014) at Argues the Free Exercise Clause does not protect religious solemnizers from claims of discrimination and that the Establishment Clause should prevent the current approach to religious solemnization.

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