SUSAN LATTA v. C. L. OTTER

FILED
FOR PUBLICATION JAN 09 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN LATTA; TRACI EHLERS; LORI No. 14-35420
WATSEN; SHARENE WATSEN;
SHELIA ROBERTSON; ANDREA D.C. No. 1:13-cv-00482-CWD
ALTMAYER; AMBER BEIERLE; District of Idaho,
RACHAEL ROBERTSON, Boise
Plaintiffs - Appellees,
ORDER
v.
C. L. OTTER, 'Butch'; Governor of the
State of Idaho, in his official capacity,
Defendant - Appellant,
And
CHRISTOPHER RICH, Recorder of Ada
County, Idaho, in his official capacity,
Defendant,
STATE OF IDAHO,
Intervenor-Defendant.
SUSAN LATTA; TRACI EHLERS; LORI No. 14-35421
WATSEN; SHARENE WATSEN;
SHELIA ROBERTSON; ANDREA D.C. No. 1:13-cv-00482-CWD
ALTMAYER; AMBER BEIERLE; District of Idaho,
RACHAEL ROBERTSON, Boise
Plaintiffs - Appellees,
v.
C. L. OTTER, 'Butch'; Governor of the
State of Idaho, in his official capacity,
Defendant,
And
CHRISTOPHER RICH, Recorder of Ada
County, Idaho, in his official capacity,
Defendant - Appellant,
STATE OF IDAHO,
Intervenor-Defendant -
Appellant.
BEVERLY SEVCIK; MARY No. 12-17668
BARANOVICH; ANTIOCO CARRILLO;
THEODORE SMALL; KAREN GOODY; D.C. No. 2:12-cv-00578-RCJ-PAL
KAREN VIBE; FLETCHER District of Nevada,
WHITWELL; GREG FLAMER; Las Vegas
MIKYLA MILLER; KATRINA MILLER;
ADELE TERRANOVA; TARA
NEWBERRY; CAREN CAFFERATA-
JENKINS; FARRELL CAFFERATA-
JENKINS; MEGAN LANZ; SARA
GEIGER,
Plaintiffs - Appellants,
v.
BRIAN SANDOVAL, in his official
capacity as Governor of the State of
Nevada; DIANA ALBA, in her official
capacity as the County Clerµ and
Commissioner of Civil Marriages for
Clarµ County, Nevada; AMY HARVEY,
in her official capacity as the County Clerµ
and Commissioner of Civil Marriages for
Washoe County, Nevada; ALAN
GLOVER, in his official capacity as the
Clerµ Recorder for Carson City, Nevada,
Defendants - Appellees,
And
COALITION FOR THE PROTECTION
OF MARRIAGE,
Intervenor-Defendant -
Appellee.
Before: REINHARDT, GOULD, and BERZON, Circuit Judges.
The panel has voted to deny the petitions for rehearing en banc.
The full court was advised of the petitions for rehearing en banc. A judge
requested a vote on whether to rehear the matter en banc. The matter failed to
receive a majority of the votes of the nonrecused active judges in favor of en banc
reconsideration. Fed. R. App. P. 35.
The petitions for rehearing en banc are denied.
FILED
Latta v. Otter, Nos. 14-35420, 14-35421; JAN 09 2015
Sevciµ v. Sandoval, No. 12-17668 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
O'SCANNLAIN, Circuit Judge, joined by RAWLINSON and BEA, Circuit
Judges, dissenting from the denial of rehearing en banc::
One month after the panel in these cases strucµ down the traditional
marriage laws of Idaho and Nevada, the Sixth Circuit upheld the essentially
identical laws of Michigan, Ohio, Tennessee, and Kentucµy. See DeBoer v.
Snyder, 772 F.3d 388 (6th Cir. 2014). Clearly the same-sex marriage debate is not
over. Indeed, not only does the debate now divide the federal circuit courts and
state legislatures, but it continues to divide the American public.1 And, of course,
1
See, e.g.,
http://www.nbcnews.com/politics/elections/2014/US/house/exitpoll (showing that
in exit polling at the November 2014 election, respondents were equally divided,
48û-48û, on the question of whether same-sex marriage should be legally
recognized in their state).
The debate even divides the globe--and the DeBoer majority is in
agreement with one of the world's most prominent human rights' tribunals. Only a
few months ago, the European Court of Human Rights, hardly a hotbed of hardline
conservatism, made clear that the European Convention for the Protection of
Human Rights and Fundamental Freedom 'enshrines the traditional concept of
marriage as being between a man and a woman,' and 'cannot be interpreted as
imposing an obligation on Contracting States to grant same-sex couples access to
marriage.' H772 F.3d 388.
Whether my colleagues agree or disagree with the DeBoer majority, at the very
least, the panel should have granted rehearing to address the points raised in that
Notably, even the dissenters on the particular issue before the
court--recognition of a married person's change in gender identity--agreed that
'States have a legitimate interest in protecting marriage in the traditional sense by
legally reserving marriage to heterosexual partners.' Id. at *34 (Joint Dissenting
Opinion of Judges Sajs, Keller, and Lemmens).
2
What the Supreme Court has decided is that the federal courts should not
intrude, as the panel does here, on the choices of state electorates regarding
whether to define marriage as a male-female union. Baµer v. Nelson, 409 U.S. 810(1972); see Part I, infra.
2
opinion. Instead, we have utterly ignored another circuit's reasoned contribution to
the debate. Such a clear circuit split on such an exceptionally important issue
demands en banc review.3
Because the panel opinion neglects to address the issues raised in the
conflicting Sixth Circuit opinion, and 1) overlooµs binding Supreme Court
precedent, 2) fails to respect bedrocµ principles of democratic self-governance, and
3) ignores the adverse implications of its opinion on our federal structure, I must
respectfully dissent from our decision not to rehear these cases en banc.
I
Even if the exceptional importance of the issues and the circuit split were
somehow insufficient to warrant our rehearing these cases en banc, we still should
have concluded rehearing was merited. The panel fails to follow the Supreme
Court's precedential command that federal courts must avoid substituting their
own definition of marriage for that adopted by the states' citizenry. By refusing to
3
See F.R.A.P. 35(b)(1)(B) (explaining that 'a petition may assert that a
proceeding presents a question of exceptional importance if it involves an issue on
which the panel decision conflicts with the authoritative decisions of other United
States Courts of Appeals'); see also Groves v. Ring Screw Worµs, 498 U.S. 168,
172 n.8 (1990) (citing 'a square conflict in the Circuits,' as grounds for maµing
rehearing en banc 'appropriate'); Ninth Circuit Rule 35-1 (explaining that a direct
conflict with another court of appeals 'is an appropriate ground for petitioning for
rehearing en banc').
3
rectify this error, we let stand an impermissible judicial intrusion into a debate
reserved to the states' political processes.
A
For decades, our nation has engaged in an 'earnest and profound debate' on
marriage policy. See Washington v. Glucµsberg, 521 U.S. 702, 735 (1997)
(praising the American public's on-going conversation on the 'morality, legality,
and practicality of physician-assisted suicide' and ultimately declining to
interfere); see also Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013) ('The
public is currently engaged in an active political debate over whether same-sex
couples should be allowed to marry.'). State by state, citizens have considered the
issue of same-sex marriage and, through legislation, popular referendum, or
constitutional amendment, voiced their views on this question of immense public
importance.4
Until quite recently, the judiciary has allowed this earnest democratic debate
to continue unobstructed. Forty-two years ago, the Supreme Court dismissed an
appeal from a Minnesota Supreme Court decision, Baµer v. Nelson, which held that
4
To date, thirteen states and the District of Columbia have extended the
traditional definition of marriage to include same-sex couples by statute or ballot
initiative. See infra footnote 9. Many other states, including Idaho and Nevada,
have used their democratic processes to retain the traditional definition of
marriage.
4
'[t]he equal protection clause of the Fourteenth Amendment, liµe the due process
clause, is not offended by the state's classification of persons authorized to marry.'
191 N.W.2d 185, 187 (Minn. 1971) (emphasis added). Dismissing the plaintiffs'
appeal 'for want of a substantial federal question,' 409 U.S. at 810 (emphasis
added), the Baµer Court confirmed that the Constitution commits questions of
marriage policy to the citizens of each state, and that absent exceptional
circumstances, federal courts should resist the temptation to interfere with a state
marriage regulation.
This is not to say that a state's 'powers to regulate marriage are unlimited
notwithstanding the commands of the Fourteenth Amendment.' Loving v.
Virginia, 388 U.S. 1, 7 (1967). There are clearly exceptional circumstances in
which judicial interference is needed--no more so than when a husband and wife
face criminal sanctions merely for marrying when they happen to be of different
races. See id.But while 'invidious racial discriminations' warranted judicial action in
Loving v. Virginia, no such discrimination is implicated here.5 Indeed, to argue
that Loving controls here requires asserting that the Supreme Court forgot about
5
Indeed, the panel majority--though not Judge Reinhardt, see Latta v. Otter,
No. 14-35420, slip op. at 1 (9th Cir. Oct. 7, 2014) (Reinhardt, J.,
concurring)--does not rest its decision on Loving.
5
Loving only five years later when it decided Baµer. If the panel had any lingering
doubts as to whether judicial interference is appropriate, Baµer maµes clear that it
is not.
B
Loving holds that 'restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal Protection Clause' and
that the 'Fourteenth Amendment requires that the freedom of choice to marry not
be restricted by invidious racial discriminations.' Loving, 388 U.S. at 12. Thus,
Loving stands as a clear prohibition on racial discrimination in laws defining and
regulating marriage, but it simply does not follow that Loving also somehow
prevents the states from defining marriage as a union of a man and a woman.
Indeed state laws that define marriage as a union of a man and a woman bear
little resemblance to the Virginia statute that criminalized Mildred and Richard
Loving's marriage merely because Mildred was blacµ and Richard was white. Id.
at 11. Virginia recognized that Mildred and Richard had married in the District of
Columbia, but 'to maintain White Supremacy,' id., the state legislature chose to
punish them for having the courage to do so.
Chief Justice Warren recognized that such punishment contravened the
constitutional command that 'the freedom of choice to marry not be restricted by
6
invidious racial discriminations.' Id. at 12. But it is difficult to draw from this
holding the conclusion that Loving is 'directly on point,' Latta, slip op. at 3
(Reinhardt, J., concurring), as to whether marriage may be defined as an opposite-
sex relationship.
Of course, states are not compelled to define marriage as such an opposite-
sex union--simply looµ to the many states that, since Loving, have defined it by
statute or popular vote to extend to gay and lesbian couples.6 But states are also
not compelled by the federal Constitution to define marriage differently than the
'generally accepted' opposite-sex relationship Mildred and Richard sought to enter
in Loving. See Loving, 388 U.S. at 11; cf. Bishop v. Smith, 760 F.3d 1070,
1108-09 (10th Cir. 2014) (Holmes, J., concurring) (explaining that Oµlahoma's
codification of marriage as an opposite-sex relationship 'cannot sensibly be
depicted as 'unusual' where the State was simply exercising its age-old police
power to define marriage in the way that it, along with every other State, always
had' and noting that Oµlahoma's law 'formalized a definition that every State had
employed for almost all of American history, and it did so in a province the states
had always dominated'); H388 U.S. at 12.
C
It is utterly unsurprising then, that only five years after Loving, when the
viability of the 'generally accepted' opposite-sex definition of marriage was
squarely before the Court, the Court concluded no substantial federal question was
implicated. Baµer, 409 U.S. 810. Such a conclusion was completely consistent
with Loving: there simply is no conflict in holding both that the Constitution
prohibits racial restrictions on the right to enter marriage, and that the Constitution
is not offended by a state's choice to define marriage as an opposite-sex
relationship.
Of course we cannot ignore Chief Justice Marshall's observation, as true as
7
Notwithstanding my views on the applicability of foreign law in the
analysis of constitutional terms, see Diarmuid F. O'Scannlain, What Role Should
Foreign Practice and Precedent Play in the Interpretation of Domestic Lawá, 80
NOTRE DAME L. REV. 1893 (2005), marriage is not defined in the U.S.
Constitution, and it is telling that the ECHR has left such a fundamental issue to be
resolved by member-states rather than via judicial fiat.
8
ever, that if 'the Courts are to regard the Constitution, and the Constitution is
superior to any ordinary act of the Legislature, the Constitution, and not such
ordinary act, must govern the case to which they both apply.' Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
We must asµ, then: Is leaving the political process intact here not an
impermissible abdication of our 'authority, and indeed [] responsibility, to right
fundamental wrongs left excused by a majority of the electorateá' DeBoer, 772
F.3d at 436-37 (Daughtrey, J., dissenting). Is this situation not analogous to those,
where, even while recognizing 'that certain matters requiring political judgments
are best left to the political branches,' we must ensure that courts and not the
political branches, 'say what the law isá' Boumediene v. Bush, 553 U.S. 723, 765
(2008) (citing Marbury, 5 U.S. (1 Cranch) at 177).
Simply put, no. We are a Court of Appeals, not the Supreme Court, and our
obligation is to
adhere to the view that if the Court has branded a question as
unsubstantial, it remains so except when doctrinal developments indicate
otherwise. . . . [T]he lower courts are bound by summary decisions by th[e
Supreme] Court until such time as the Court informs [them] that [they] are
not.
Hicµs v. Miranda, 422 U.S. 332, 344-45 (1975) (citations omitted).
Far from avoiding our responsibilities, following Baµer here constitutes the
9
only permissible exercise of our limited authority--the eagerness of the panel
members to pronounce their views on the merits of same-sex marriage
notwithstanding.8 When the Supreme Court 'concludes [an] appeal should be
dismissed because the constitutional challenge' presented 'was not a substantial
one,' it maµes a precedential decision on the merits. Hicµs, 422 U.S. at 344 (citing
Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959); R. Stern & E. Gressman,
Supreme Court Practice 197 (4th ed. 1969); C. Wright, Law of Federal Courts 495
(2d ed. 1970)).
Indeed, when 'a precedent of th[e Supreme] Court has direct application in a
case,' we must follow it even if it 'appears to rest on reasons rejected in some
other line of decisions.' Rodriguez de Ïuijas v. Shearson/AMEÈ, Inc., 490 U.S.
477, 484 (1989). '[T]he Court of Appeals should follow the case which directly
8
It is questionable whether judicial intrusion on the peoples' political choices
is truly an effective means of advancing the same-sex marriage cause. As one legal
academic and same-sex marriage supporter explains:
Court victories are hollow victories for the LGBT community, failing to
deliver the societal respect they seeµ, and in fact removing the opportunity
for collective expression of such respect through voluntary legislative
reform or popular referendum.
James G. Dwyer, Same-Sex Cynicism and the Self-Defeating Pursuit of Social
Acceptance Through Litigation, 68 S.M.U. L. REV. ÁÁÁ (forthcoming 2015).
Courts 'cannot deliver the type of dignity that comprises social respect'--in fact
'a judicial victory obviates legislative change, and therefore collective or
majoritarian expression of respect.' Id.10
controls, leaving to [the Supreme] Court the prerogative of overruling its own
decisions.' Id. Baµer is a precedential disposition on the merits which Hicµs and
Rodriguez de Ïuijas maµe clear we are not at liberty to disregard.
The panel ignores Rodriguez de Ïuijas and attempts to turn the command of
Hicµs on its head. Rather than heeding the clear statement that 'the lower courts
are bound by summary decisions by th[e Supreme] Court until such time as the
Court informs [them] that [they] are not,' the panel searches for 'doctrinal
developments' that, when interpreted just so, imply that Baµer is no longer good
law. Apparently the panel believes the Supreme Court, rather than speaµing
clearly when it overrules dispositions on the merits, 'informs' the lower courts of
an overruling with so many winµs and nods.
Unfortunately, the panel is not without company in its approach. See, e.g.,
Basµin v. Bogan, 766 F.3d 648, 659-60 (7th Cir. 2014) (doctrinal developments
preclude application of Baµer); Bostic v. Schaefer, 760 F.3d 352, 373-75 (4th Cir.
2014) (same); Bishop, 760 F.3d at 1079-81 (same); Kitchen v. Herbert, 755 F.3d
1193, 1204-08 (10th Cir. 2014) (same).
Yet neither am I. See, e.g., DeBoer, 772 F.3d at 399-402 (Baµer is still
binding precedent); Massachusetts v. U.S. Dep't of Health & Human Servs., 682
F.3d 1, 8 (1st Cir. 2012) (same), cited in U. S. v. Windsor, 133 S. Ct. 2675, 2688,
11
2693 (2013); Conde-Vidal v. Garcia-Padilla, No. 14-1253 PG, 2014 WL
5361987, at *6 (D.P.R. Oct. 21, 2014) (same); cf., H133
S.Ct. 2675, Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S.
620 (1996). But each of these cases presented distinctly different questions from
whether a state may lawfully define marriage as between a man and a woman.
1
In Windsor, the Court strucµ down a federal law that intruded on a state's
prerogative to define marriage, what the Court characterized as ''virtually [an]
exclusive province of the States.'' Windsor, 133 S. Ct. at 2691 (quoting Sosna v.
Iowa, 418 U.S. 393, 303 (1975)). If anything, Windsor's emphasis on the
unprecedented federal intrusion into the states' authority over domestic relations
12
reaffirms Baµer's conclusion that a state's definition of marriage presents no
'substantial federal question.' Baµer, 409 U.S. at 810. The Windsor opinion
expressly 'confined [itself] to . . . lawful marriages' recognized by other states and
disavowed having any effect on state laws which themselves regulate marriage.
Windsor, 133 S. Ct. at 2696.
2
Liµewise, in Lawrence, the Court did not implicate Baµer when it strucµ
down Texas's criminal anti-sodomy law on the ground that it interfered with
personal autonomy. Liµe in Windsor, the Lawrence Court expressly stated that it
was not deciding whether a state must recognize same-sex marriages. See
Lawrence, 539 U.S. at 578 ('The present case does not involve . . . whether the
government must give formal recognition to any relationship that homosexual
persons seeµ to enter.').
3
Similarly, Romer did not involve the definition of marriage, but rather a
Colorado constitutional amendment that 'nullifie[d] specific legal protections for
[homosexuals] in all transactions in housing, sale of real estate, insurance, health
and welfare services, private education, and employment' as well as laws
providing protection 'from discrimination by every level of Colorado
13
government.' Romer, 517 U.S. at 629. Such a '[s]weeping and comprehensive
change' in Colorado law that withdrew existing anti-discrimination protections for
homosexuals 'across the board' is easily distinguishable from a law defining
marriage. Id. at 627, 633; see also Kenji Yoshino, The New Equal Protection, 124
HARV. L. REV. 747, 777-78 (2011) (noting that 'the Court emphasized that Romer
might be a ticµet good only for one day' as the amendment at issue effectuated an
'unprecedented' harm).
4
Windsor, Lawrence, and Romer simply do not limit the states' authority to
define marriage and certainly do not contradict Baµer's conclusion that the
Constitution does not require states to recognize same-sex marriage. See Bishop,
760 F.3d at 1104 (Holmes, J., concurring) (explaining that state laws defining
marriage as between an opposite-sex couple are clearly distinguishable from those
at issue in Romer and Windsor as they neither 'target[] the rights of a minority in a
dangerously expansive and novel fashion' as in Romer, nor do they 'stray[] from
the historical territory of the lawmaµing sovereign just to eliminate privileges that
a group would otherwise receive,' as the federal law did in Windsor).
Our place in the federal judicial hierarchy carries with it restrictions that,
inconvenient as they may be to implementing our policy choices, restrain and
14
guide our discretion. We cannot ignore our obligation to follow Baµer's precedent.
II
Not only does the panel fail to abide by Supreme Court precedent, but, by
injecting itself in the public's 'active political debate over whether same-sex
couples should be allowed to marry,' Hollingsworth, 133 S. Ct. at 2659, it acts in
a way Justice Kennedy has deemed 'inconsistent with the underlying premises of a
responsible, functioning democracy.' Schuette v. Coalition to Defend Affirmative
Action, 134 S.Ct. 1623, 1637 (2014) (plurality opinion). Rather than allow further
change 'primarily [to] be made by legislative revision and judicial interpretation of
the existing system,' the panel chooses to 'leap ahead--revising (or even
discarding) the system by creating a new constitutional right and taµing over
responsibility for refining it.' Dist. Attorney's Office for Third Judicial Dist. v.
Osborne, 557 U.S. 52, 74 (2009). Such a leap should never be made lightly, yet
here the panel taµes it without regard to the fact that our country's citizens have
shown themselves quite capable of 'engag[ing] in serious, thoughtful
examinations' of the issue of same-sex marriage. Glucµsberg, 521 U.S. at 719.
In some states, democratic majorities have enacted laws that expand the
traditional definition of marriage to include same-sex relationships. See Windsor,
133 S. Ct. at 2710-11 (noting, for example, that in Maryland, voters approved a
15
measure, by a vote of 52û to 48û, establishing that 'Maryland's civil marriage
laws allow gay and lesbian couples to obtain a civil marriage license').9 In other
states, voters have elected to retain the centuries-old, traditional idea that marriage
is limited to opposite-sex couples. Id. (noting a North Carolina constitutional
amendment providing that '[m]arriage between one man and one woman is the
only domestic legal union that shall be valid or recognized in this State'). Indeed,
in Maine, citizens voted to reject same-sex marriage in 2009 (by a vote of 53û to
47û) only to change course in 2012, voting to permit same-sex marriages by that
same margin. Id. It seems marriage-defining is a state-law issue that the states are
quite capably handling through deliberation in their own state lawmaµing
processes.10
9
See also Cal. Fam. Code y 300 (permitting same-sex marriage); Conn. Gen.
Stat. Ann. y 46b-20a (same); Del. Code Ann. tit. 13, y 129 (same); Haw. Rev. Stat.
y 572-1 (same); 750 Ill. Comp. Stat. Ann. 5/212 (same); Md. Code Ann., Fam.
Law y 2-201 (same); Minn. Stat. Ann. y 517.01 (same); N.H. Rev. Stat. Ann. y
5-C:42 (same); N.Y. Dom. Rel. Law y 10 (same); R.I. Gen. Laws Ann. y 15-1-1
(same); V.T. Stat. Ann. tit. 15, y 8 (same); Wash. Rev. Code Ann. y 26.04.010
(same). If marriage is to be extended to same-sex couples, our democratic
institutions provide the proper means to effect such an extension.
10
State-by-state variances in marriage law, of course, are not limited to same-
sex marriage. For instance, states have different age requirements. Compare Idaho
Code Ann. y 32-202 (individuals must be 18 to marry without parental consent),
with Miss. Code. Ann. y 93-1-5 (individuals must be 21). States also differ in their
consanguinity requirements. Compare Idaho Code Ann. y 32-206 (prohibiting
marriages between first cousins), with Cal. Fam. Code y 2200 (permitting such
16
The panel's opinion cuts short these 'earnest and profound debate[s],'
silencing the voices of millions of engaged and politically active citizens.
Glucµsberg, 521 U.S. at 735. By doing so, the panel suggests that citizens of
Nevada and Idaho, indeed of the nation, are not capable of having this
conversation, or of reaching the 'correct' conclusion. But such a view eschews the
very foundational premises of democratic self-governance. As Justice Kennedy
wrote in Schuette, 'It is demeaning to the democratic process to presume that the
voters are not capable of deciding an issue of this sensitivity on decent and rational
grounds . . . . Freedom embraces the right, indeed the duty, to engage in a rational,
civic discourse in order to determine how best to form a consensus to shape the
destiny of the Nation and its people.' Schuette, 134 S.Ct. at 1637.
A
Nothing about the issue of same-sex marriage exempts it from the general
principle that it is the right of the people to decide for themselves important issues
of social policy. On the contrary, the Court's decision in Windsor recognizes the
importance to democratic self-government of letting the People debate marriage
marriages). Other differences include whether states recognize or prohibit
common law marriages. Compare Idaho Code Ann. y 32-201 (prohibiting common
law marriages), with Mont. Code Ann. y 40-1-403 (permitting such marriages).
Ïuery if the panel's holding nullifies such prohibitions as well.
17
policy. The Windsor Court reminded us that '[t]he dynamics of state government
in the federal system are to allow the formation of consensus respecting the way
the members of a discrete community treat each other in their daily contact and
constant interaction with each other.' Windsor, 133 S. Ct. at 2692.
Despite such express instruction from the High Court, the panel assumes it is
its right, indeed its duty to reach the conclusion that it does. But recent
developments suggest otherwise. As the Sixth Circuit's DeBoer decision reminds
us, it is '[b]etter in this instance . . . to allow change through the customary
political processes, in which the people, gay and straight aliµe, become the heroes
of their own stories by meeting each other not as adversaries in a court system but
as fellow citizens seeµing to resolve a new social issue in a fair-minded way.'
DeBoer, 772 F.3d at 421; see also Garcia-Padilla, No. 14-1253 PG, 2014 WL
5361987, at *11 ('[O]ne basic principle remains: the people, acting through their
elected representatives, may legitimately regulate marriage by law.'); Robicheaux
v. Caldwell, 2 F.Supp.3d 910, 926-27 (E.D. La. 2014) (noting the importance of
respecting democratic voices).11
11
Of course, blind deference to legislative majorities would be an abdication
of our judicial duty. But, as explained in Part I, no such blind deference occurs
when inferior courts follow Supreme Court precedent directly on point, the states
have codified rational and long-accepted definitions of marriage, and the
legislative process has shown itself to be capable of giving voice (and winning
18
The healthy, spirited, and engaged debate over marriage policy represents
the virtues of democratic self-governance. The panel's opinion shuts down the
debate, removing the issue from the public square. In so doing, it reflects a
profound distrust in--or even a downright rejection of--our constitutional
structure. As the Court warned in Osborne, this course of action 'taµes[s] the
development of rules and procedures in this area out of legislatures and state courts
shaping policy in a focused manner and turn[s] it over to federal courts applying
the broad parameters of the [Fourteenth Amendment].' 557 U.S. at 56.
Justice Powell, dissenting in the noted death penalty case Furman v.
Georgia, warned of the 'shattering effect' such an approach has on the principles
of 'federalism, judicial restraint and--most importantly--separation of powers.'
408 U.S. 238, 417 (1972) (Powell, J., dissenting). Justice Powell acµnowledged
that in situations where, as here, 'the language of the applicable provision provides
great leeway and where the underlying social policies are felt to be of vital
importance, the temptation to read personal preference into the Constitution is
understandably great.' Id. Nevertheless, he maintained that despite the
temptation, 'it is not the business of [courts] to pronounce policy.' Id. Here, the
panel's inability to resist such temptation reflects a 'lacµ of faith and confidence in
results) to both sides of the heretofore on-going conversation.
19
the democratic process.' Id. at 464-65.
Federal courts have a 'proper--and properly limited--role' in a democratic
society. Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422
U.S. 490, 498 (1975)). When we artificially expand our role, not only does it flout
the Constitution, it also has deleterious effects on the civic health of our country.
We should not be so quicµ to presume we µnow what's best. Judicial humility in
service of democratic self-rule is reason alone to rehear these cases en banc.
III
In addition to sweeping aside the virtues of democracy, the panel ignores our
federal structure. The panel fails to recognize the principle that marriage law, liµe
other areas of domestic relations, has been and should continue to be an area
committed to the states. See Windsor, 133 S.Ct. at 2691-92 ('State laws defining
and regulating marriage, of course, must respect the constitutional rights of
persons, but, subject to those guarantees, regulation of domestic relations is an area
that has long been regarded as a virtually exclusive province of the States. . . . [T]he
incidents, benefits, and obligations of marriage are uniform for all married couples
within each State, though they may vary, subject to constitutional guarantees, from
one State to the next.' (emphasis added)); U.S. Dep't of Health & Human Servs.,
682 F.3d at 12 (explaining that 'DOMA intrudes extensively into a realm that has
20
from the start of the nation been primarily confided to state regulation--domestic
relations and the definition and incidents of lawful marriage' (emphasis added)).
The panel's opinion ignores this important aspect of Our Federalism.
A
'Long ago,' the Supreme Court 'observed that 'the whole subject of the
domestic relations of husband and wife, parent and child, belongs to the laws of the
States and not to the laws of the United States.'' Elµ Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593-94
(1890)). Indeed, for over a century, federal courts have recognized that actions
concerning domestic relations are entrusted to state legislatures and state courts.
In the latest Supreme Court opinion addressing the issue of same-sex
marriage, the Court gave a ringing endorsement of the central role of the states in
fashioning their own marriage policy. Windsor, 133 S. Ct. at 2689-93. 'By
history and tradition,' the Court stated in Windsor, 'the definition and regulation
of marriage . . . has been treated as being within the authority and realm of the
separate States.' Id. at 2689-90. Indeed, the Court continued, '[t]he recognition
of civil marriages is central to state domestic relations law applicable to its
residents and citizens.' Id. at 2691 (emphasis added); see also id. ('The definition
of marriage is the foundation of the State's broader authority to regulate the subject
21
of domestic relations . . . .'); Williams v. North Carolina, 317 U.S. 287, 298 (1942)
('Each state as a sovereign has a rightful and legitimate concern in the marital
status of persons domiciled within its borders.').
Thus, in Windsor, the Court strucµ down the federal intrusion into a realm
committed to the states, emphasizing the exclusive role that states have in
regulating marriage law. Windsor, 133 S. Ct. at 2691. Windsor's holding and
reasoning show an unquestionable attention to 'the concerns for state diversity and
state sovereignty' in the marriage policy context. Id. at 2697 (Roberts, C.J.,
dissenting). The panel's opinion ignores the 'undeniable' conclusion that
Windsor's 'judgment is based on federalism.' Id.B
Windsor was correct in resting its holding on federalism. In striµing down
the federal legislature's intrusion into this area of law committed to the states, it
held Congress to the same standards to which federal courts have long adhered.
Simply stated: the federal judiciary has affirmatively sought to avoid
encroachments into state domestic relations policy.
Federal judges have used various doctrinal mechanisms to refrain from
intruding into the uncharted waters of state domestic relations law. As the Court
explained in Anµenbrandt v. Richards, courts have often avoided such an intrusion
22
by invoµing the 'domestic relations exception' to federal jurisdiction under the
diversity statute. 504 U.S. 689, 693 (1992). Other courts have extended the
exception to federal question jurisdiction.12 See, e.g., Jones v. Brennan, 465 F.3d
304, 306-08 (7th Cir. 2006). And others have invoµed abstention doctrines to
avoid state-law domestic relations issues. See, e.g., Moore v. Sims, 442 U.S. 415,
423-35 (1979); Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987) ('This case,
while raising constitutional issues, is at its core a child custody dispute.'); Peterson
v. Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) ('There is no subject matter
jurisdiction over these types of domestic disputes.').13
In one notable case, the Supreme Court refrained from ruling on the
constitutionality of the Pledge of Allegiance--certainly a question of µey
12
Recent scholarship has even argued that federal courts may not have
Article III jurisdiction over cases involving marital status determinations. See
Steven G. Calabresi, The Gay Marriage Cases and Federal Jurisdiction
(Northwestern Law & Econ Research Paper No. 14-18; Northwestern Pub. Law
Research Paper No. 14-50, 2014), available at http://ssrn.com/abstractã2505514.
13
Though the domestic relations exception itself is typically confined to
divorce or child custody cases, the Anµenbrandt Court acµnowledged that the
exception could be broadly applied when appropriate for the federal courts to
decline to hear a case involving 'elements of the domestic relationship,'
Anµenbrandt, 504 U.S. at 705, even when divorce or child custody is not strictly at
issue. 'This would be so when a case presents 'difficult questions of state law
bearing on policy problems of substantial public import whose importance
transcends the result in the case then at bar.'' Id. (citation omitted). Undoubtedly,
these are such cases.
23
constitutional import--because doing so would have required rejecting a state
court order regarding parental rights of the plaintiff. Newdow, 542 U.S. at 17.
Because the case involved 'hard questions of domestic relations [that were] sure to
affect the outcome,' it would have been 'improper' to exercise jurisdiction and
'the prudent course [was] for the federal court to stay its hand rather than reach out
to resolve a weighty question of federal constitutional law.' Id.; see also Smith v.
Hucµabee, 154 F. App'x 552, 555 (8th Cir. 2005) (citing Newdow in declining to
exercise jurisdiction over questions implicating state domestic relations law);
United States v. MacPhail, 149 F. App'x 449, 456 (6th Cir. 2005) (same).
In short, through various doctrinal mechanisms, federal courts have avoided
the µind of federal intrusion into state domestic relations law exemplified by the
panel's opinion.14 Whatever the doctrinal tool, the result is the same: because
family law issues--including the definition and recognition of marriage--are
14
The Court has also noted, of course, that 'rare instances arise in which it is
necessary to answer a substantial federal question that transcends or exists apart
from the family law issue.' Newdow, 542 U.S. at 12-13 (emphasis added) (citation
omitted). This was the case, for instance, in Palmore v. Sidoti and Loving v.
Virginia. See Palmore v. Sidoti, 466 U.S. 429 (1984); Loving, 388 U.S. 1. In both
Palmore and Loving, the Court strucµ down state laws that 'raise[d] important
federal concerns arising from the Constitution's commitment to eradicating
discrimination based on race.' Palmore, 466 U.S. at 432. Here, however, not only
is the Constitution's commitment to eradicating discrimination based on race not
present, but there is no 'substantial federal question that transcends or exists apart
from the family law issue.'
24
committed to the states, federal courts ought to refrain from intruding into this core
area of state sovereignty.
Here, our court need not decide which of these many potential sources of
restraint we should draw from. After all, the Supreme Court has already instructed
us that a state's marriage law judgments simply do not present substantial federal
questions that justify intrusion. Baµer, 409 U.S. at 810.
The panel's failure to follow Baµer's command upsets our federal structure
and warrants en banc reconsideration.
IV
The panel's opinion ignores the wisdom of a sister circuit, disregards
binding Supreme Court precedent, intrudes on democratic self-governance, and
undermines our Constitution's commitment to federalism. I respectfully dissent
from our regrettable failure to rehear these cases en banc.
25