Justice Scalia Is Vindicated, Fortunately

We begin with a legal chronology. In 1996, Congress adopted the Defense of Marriage Act. Section two of that law reads:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

In November of 2004, Ohio adopted a state constitutional ban on same-sex marriage which reads:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

On June 26 of this year, the Supreme Court of the United States struck down section three of DOMA in the case of United States v. Windsor. The critical peroratory language from the majority opinion:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State [New York], by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

That decision did not affect section two, which other than the section one giving the law its name, is the only operative language of DOMA left on the books after Windsor. In a shrill dissent, Antonin Scalia wrote of the future use of the Windsor opinion:

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples … .

On July 11, 2013, James Obergefell and John Arthur, both of Cincinnati, Ohio flew to Maryland and got married there. The trip was something of a rush — Mr. Windsor is apparently in very poor health resulting from amyotrophic lateral sclerosis, with special medical equipment on the airplane. They did not exit the airport, their ceremony was performed and paperwork executed on the tarmac, whereupon they got back on the plane and flew home again. Perfectly legal under Maryland state law. Sadly, it appears that Mr. Windsor’s death is imminent.

On July 22, 2013, Mr. Obergefell and Mr. Arthur were granted a Federal restraining order barring enforcement of their own state’s ban against same-sex marriages. The U.S. District Court, by Judge Timothy S. Black, based its reasoning on the recent case of United States v. Windsor, and the judge’s assessment of Ohio state law: “Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized.” He cited cases going back to 1895, in which marriages not recognized by Ohio state law but recognized by other states (based on the ages of the spouses or their degree of consanguinity in the case of first cousins who marriage) were held to be valid marriages within Ohio because they were valid where the marriage was solemnized.

So that’s of interest, because Judge Black interwove state law about validity of marriages with the Federal Equal Protections analysis. Had Ohio law been to the contrary — first cousins might be married in Massachusetts but they aren’t married in Ohio — would the result in Obergefell v. Kasich have been different?

But Ohio law is as it is, not as it might otherwise have been. Calling it “not a complicated case,” the Federal judge in Cincinnati granted a temporary restraining order: “[T]he local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthur’s status at death as ‘married’ and James Obergefell as his ‘surviving spouse.'”

Another thing that piques my interest is this language from the temporary restraining order:

[A]s the United States Supreme Court found in Windsor, there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal. Instead, as in Windsor, and at least on this early record here, the very purpose of the Ohio provisions, enacted in 2004, is to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Justice Scalia’s prediction comes true, at least most of the way. What Scalia wrote is basically the line of argument that Judge Black adopted. The only apparent motive behind the state constitutional amendment was animus towards same-sex couples (by way of legislatively stating that their relationships were not worthy of the same recognition as those of mixed-sex couples) and therefore there is no legitimate state purpose to the ban and an Equal Protections violation — or so Judge Black found.

This sounds about right to me. It seems perfectly congruent with Windsor to me. But then, I’m kind of a partisan on the issue, so naturally it would. What’s interesting is that this is a fantastic test case for challenging the rest of the Defense of Marriage Act. Again we have some rather sympathetic claimants — a dying man and his distraught husband. (Their picture makes them look pretty photogenic, too.) We have a strong legal precedent in their favor and political ground whose center has shifted — one of Ohio’s Senators, Rob Portman, who was widely touted as a possible running mate to Mitt Romney last year, has broken ranks with his fellow Republicans and advocated same-sex marriage. Impact litigation doesn’t get much more favorable circumstances than this.

And I can tell you from my own experience that when a District Court grants a temporary restraining order, normally the court sets a date about a month in the future for a re-hearing. Both sides get to gather more evidence and submit further and more detailed briefings on the law. If that hearing goes well for the applicant, the temporary restraining order converts into a preliminary injunction, which requires a finding by the court that the applicant has a “probability of success on the merits,” meaning it’s more likely than not that the plaintiff ultimately will win and get a permanent injunction. Since the burden of proof in most civil cases is already “preponderance of the evidence,” the preliminary injunction hearing basically amounts to a complete mini-trial, and cases usually resolve based on the judge’s ruling on the preliminary injunction.

I have never been counsel in a case in Federal court where a TRO got reversed by an order on a preliminary injunction. I’m sure it happens. But it’s never happened to me. (This has happened in cases I’ve worked on in state court, many times.) And this case seems particularly not susceptible to new facts or new legal arguments coming to light which are likely to change the judge’s mind.

So a third thing that interests me is the fact that nowhere in his opinion did Judge Black consider the companion case to Windsor, Hollingsworth v. Perry, the California Proposition 8 case. Not the Supreme Court case, but the District Court’s findings of fact and conclusions of law, which survived the Supreme Court’s standing analysis. California’s Proposition 8, also an amendment to the state’s constitution, had similar operative wording as Ohio’s. And the district court found no legitimate purpose to that law after taking in considerable evidence from all of the SSM-banning “experts,” who were utterly eviscerated at trial. But that decision was not mentioned at all in Obergefell v. Kasich. Perhaps the judge did not feel the need, in light of the sweeping language in Windsor.

Obviously, this case will be reviewed by the Sixth Circuit, and maybe by the Supreme Court. But I wonder if the decisive marquee case from this year’s term will be Windsor. It might be Shelby County v. Holder.

This is a federalism issue, after all, and federalism is at the heart of Shelby County: the Federal Voting Rights Act provided a mechanism by which the Federal government could override state law decisions based on a showing historic patterns of discriminatory animus. But Alabama overcame the effect of that by demonstrating that the historic conduct upon which Federal pre-emption of state law decisions was out of date, and therefore without a showing of current facts demonstrating current animus in the law, the Federal government lacks the power to pre-empt and override a state law.

Even if so, I suspect that current facts are that 2004 was not so long ago as the acts underlying the Voting Rights Act’s application in Alabama. The political center of gravity may well have shifted in Ohio, but it’s not the case that the law has shifted with it. And something that happened in 2004 is substantially more relevant to the current state of affairs than something that happened in 1954.

I’d argue that only a showing that Ohio was near to adopting a repeal of its constitutional ban on same-sex marriages would demonstrate that Federal intervention was not necessary to redress discriminatory animus writ into the law itself. An effort to repeal the constitutional ban on same-sex marriages for the 2013 ballot failed to gather enough signatures to qualify, although we should bear in mind that this is not decisive evidence of a lack of desire to repeal on the part of Ohio’s electorate. Of course, if Ohio’s voters had repealed the constitutional ban on same-sex marriages, then this case would have been moot because the couple’s marriage would have been valid under Ohio law.

But this is a great candidate for the case that pits federalism against equal protection. That Justice Scalia’s prediction — that opponents of same-sex marriage are taking a stand against what ought to be a no-brainer question of simple human dignity and equality — has come true in the form of plain, powerful legal argument bothers me not so very much, but that is because it has become a bit difficult for me to offer moral cover to those who would oppose same-sex marriage on even prudential grounds anymore, given the accumulation of experience that it is nothing but good for those people who want to get married and nothing but harmless for the people who don’t.

The only flaw in the case from an impact litigator’s point of view is that Ohio appears to have a century-long (or more) history of deferring to marriages solemnized by other jurisdictions even where those marriages would not have been solemnized in Ohio itself. The facts and legal circumstances are very close to perfect to finish the job so well begun in the Windsor case of rendering the entirety of the Defense of Marriage Act dead, dead, dead.

And good riddance when it does.