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Monday, July 28, 2014

4CA Strikes Down SSM Ban

See here with the ruling provided here. A summary of same sex marriage in the United States and (since -- like the 10CA -- it rests on the fundamental right to marry, not addressed here as such) the Obama Administration's argument that sexual orientation warrants heightened scrutiny.

Looking at the summary, the dominoes in the federal appellate courts are even more quickly falling than one might imagine. First, the 9CA (following the 2CA below in Windsor)  held that sexual orientation warrants heightened scrutiny.*  It is basically pro forma -- as basically recognized by a judge who dissented from denying en banc on the question -- to move from that to SSM being protected.  Nevada, e.g., gave up the fight once that happened.  Also, given state action in states in the first three circuits, don't see how the question will even arise.  SSM is already protected, in NJ and CT via state court action (PA decided not to appeal a district court ruling).  Perhaps, the scrutiny issue could arise.

So, that's basically half of the circuits (1-4CA, 9/10CA) and probably should toss in D.C. (where SSM was passed by popular vote) though I guess some issue might arise in which it comes up (I don't know how at first blush; also there are specialty courts too).  The 7CA might be the next up and it seems doubtful that it would not recognize SSM as being protected.  Odds, I think, the 6CA won't be the first either.  I think if there was a circuit split, it would arise via action in the 5th or 11th -- the South. Guess, to be careful, there might be an en banc ruling in the 4CA.

Update: Another person elsewhere flagged that though it wouldn't likely come up in the states, NE circuits would cover places like Puerto Rico (1CA) and the Virgin Islands (3CA), where SSM is not recognized.  

I personally thought the dissent in the 10CA rather weak, it partially based on the holding action idea Baker v. Nelson is still good law. This dissent is a tad more well written but basically as lame.  The same old lines are brought up, including "traditional marriage," ignoring that institution involved various things that are patently rejected -- including as a matter of constitutional law -- today.** A variety of "new" things developed over the years.  The dissent even recognizes SSM meets the terms of "marriage" in a variety of ways (I appreciate the majority being the second appellate court to cite Turner v. Safley to show the complexities of marriage, including beyond the procreation angle).  
Only the union of a man and a woman has the capacity to produce children and thus to carry on the species. And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit.
The judge doesn't appear to be aware of the idea of IVF or adoption here. The "union" that does this is not merely marriage, but sex or even fertilization via the test tube.  And, yet again, sadly, marriage is seen as small. Marriage has a variety of aspects and is not just there for those willing or able to have children.  As to society regulating the "family unit," yeah, including the "family units" involved in these cases. As to "no language" protecting same sex marriage, the whole "equal protection of law" stuff seems suggestive at least. The attempt to make the ban "rational" is perhaps the least wrong aspect of the whole affair, the fundamental right to marry and an appropriate heightened scrutiny of sexual orientation (or recognition of sex discrimination) just easing things along there.

The ruling itself was rather short -- don't be fooled by the page count, in part because the main text only begins at page twenty, and a sizable portion is spent on standing and such issues. Also, note the big fonts. Surely, the battle is not over, but it does seem as applied to SSM itself just a matter of time now.  Will legalization of marijuana eventually seem this obvious?


* The opinion here continues a semi-trend in noting Windsor did not provide clarity on scrutiny, but it did in a limited way:
In determining whether a law is motivated by an improper animus or purpose, discriminations of an unusual character especially require careful consideration. [punctuation cleaned up]
The general trend is not to rest on that when striking down SSM though I think (as that article suggests) the facts would justify it. Anyway, Lawrence v. Texas didn't rest on special animus alone and nor should this. Plus, whatever that ruling held, the right to marry is clearly fundamental and warrants strict scrutiny. So, as applied here, the matter is somewhat moot.

**  ETA: In Bowers, we had the same idea that "traditional" rights to privacy did not include the same sex couples involved.  Lawrence v. Texas was not specifically about marriage, but its principles apply if we are consistent. Its opposition to narrow respect of rights applies here too.

This is part of the "it's new" argument's problems -- line-drawing.  Same sex marriage is basically the completion of a series of recognitions of same sex intimate association rights over the years. Bit by bit, the parts were recognized (right to associate, to have sex, to cohabit, have government jobs while doing so, right to form families recognized by the state etc. etc.). Toss in religious and other beliefs on the subject, just how "new" is the whole thing, exactly? And, once the foundations of not recognizing marriage falls, how much does it matter? 

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