I have a couple of questions regarding the U.S. Circuit Courts of Appeals, particularly in relation to SSM decisions. It seems to me they aren’t following consistent procedures, and it surprises me that they aren’t.
First, there’s the case of the 10th Circuit’s ruling in Kitchen v. Herbert. If this ruling applies to all states in the circuit, as is often claimed, why are other states still hearing essentially the same question at the district level? In particular, a ruling agaisnt Colorado’s SSM ban was just made in Burns v Hickenlooper, but this ruling is stayed pending appeal to the 10th Circuit. Hasn’t the 10th Circuit already answered this question? Shouldn’t the case just be put into a Kitchen v. Herbert bucket, and wait for the Supreme Court? Why did the district court waste its time?
My second question concerns Bostic v Rainey. In other cases, (particularly Oregon and Pennsylvania), when a district court ruled against an SSM ban and the state’s governor and attorney general declined to pursue an appeal, the ban just ended. However, the 4th Circuit allowed Rainey, a state registrar to step in as the defendant. What makes this different from Oregon and Pennsylvania? Surely each of those states has at least one government official willing to defend the ban, but for some reason they weren’t given standing to do so. The 4th Circuit’s decision will probably be appealed now. Will the Supreme Court also accept Rainey’s standing in the case?
The fact that one state didn’t establish the required foundation to justify a law like this, does not necessarily mean another state can’t. Or at least have a chance to try.
I’m not aware of other state officials, like a registrar, trying to assert standing in the prior cases.
Does that mean an Appeals Court decision is not automatically binding on all states in the circuit, or am I misunderstanding what binding means? If no one filed suit in say North Carolina, would a ban on SSM in that state be allowed to stand forever despite their circuit’s court decision that such a ban violates the U.S. Constitution?
I’m still curious what happened in Virginia that didn’t happen in Oregon or Pennsylvania. The only question of standing Wikipedia mentions in Bostic v Rainey concerns the plaintiffs. I’m not finding any reference to Rainey’s standing ever being questioned. I assume she’s acting in her official capacity, and so the State of Virginia is funding the defense even though its governor and attorney general won’t defend it themselves. That’s got to be unusual, right?
I agree, but I’m reminded of Cooper v. Aaron. In that case the state of Arkansas said (basically) “Hey, we weren’t a party in Brown v. Board of Education and that decision is not binding on us. We can have segregated schools until a case tells us otherwise!”
The Court told them to fuck off.
But the question is a good one. Suppose Kennedy decides that SSM is not a right that the states have to recognize. What happens to these states that either declined to appeal or were found to be without standing? Pennsylvania, Oregon, and I dare say, California all come to mind.
The rationale for the district courts in these cases are overturned and therefore their rulings should be overturned. So what happens to all of the same sex couples married in these states since then?
Also, is the recent 4th circuit opinion binding in West Virginia, North Carolina, or South Carolina as well? After all, West Virginia doesn’t have a constitutional amendment but simply a law against SSM. Maybe that makes a difference? Or not at all? What should Judge Chambers in the Southern District of West Virginia do with a SSM case in front of him? Distinguish or must he follow the 4th Circuit?
The whole thing is just a nightmare that the Supreme Court needs to solve/should have solved in Lawrence and definitely in Windsor and probably in Perry. Although I respect the standing doctrine, it makes little sense to literally spend millions in legal fees to get the same question back in front of the justices because of a procedural defect.
I assume it would work the same way as the Burns v. Hickenlooper case out of Colorado. The plaintiffs filed their suit on July 1, saying basically “the 10th Circuit ruling controls this”, and they got their order on July 23. As I understand it, the attorney general in North Carolina has ceased defending his state’s ban after the 4th Circuit ruling, but whether some other defendant is prosecuting it, I don’t know.
Ultimately there were seven or eight states that ultimately joined as parties in Brown. So SCOTUS could be reasonably certain that their holding addressed each potential variation on the theme. I agree that “well, ours was a state constitutional provision and theirs was a statute” is probably a reasonable distinction to draw (depending on whatever ruling actually comes out).
I think so as well but which way would/should the distinction go? I can see two possible lines of thought:
A state constitutional amendment shows a strong state public policy against SSM so we will allow that. A simple statute? Not enough of a compelling reason. Statute is unconstitutional.
A state constitutional amendment shows a strong animus against same sex couples and has no rational basis (with teeth) other than pure animus and violates the due process clause. A statute shows reasoned deliberation in the legislature without following a mob mentality and a lack of animus. Amendments are struck down but statute stands.
I know that both seem silly but what do you expect with Mr. “I’m making this tier of scrutiny up as I go” Justice Kennedy?
This is probably the most important distinction. Sometimes courts rule with a wide brush (“Separate but equal does not work”?) but generally they address the question at hand - the specific wording of the law and how it relates to the US constitution. In doing so, they might enumerate general guiding principles; in case you haven’t noticed, though, the recent SCOTUS especially has avoided, as much as it can, making a sweeping decision when a technicality works best… I.e. “we’re not going to rule on that principle because you lack standing in this case.”
For example " this is not about same-sex marriage, this is about whether the federal government must recognize what a state has said is a legal marriage no matter who the participants". In that case, there’s no guarantee the same court would rule that gays have a right to marry, but the fact that the court would find one situation legal suggests it’s not impossible to win the other case - but not impossible to lose it. When the legislators fail to do their job properly, it’s up to the courts to make policy.
Another state or a slightly different case may or may not involve different principles. The lawyers look at the previous precedent and decide - can this be stretched to apply in this case? Does any general principle of the previous decision cover this? The more divisive the case, the more likely the side that does not want to conceded defeat will
Couldn’t Arkansas have presented studies that said “Yeah, separate but equal was bad in Kansas and South Carolina, but here in Arkansas, our curriculum is excellent and the local whatevers are different, so racial segregation is not bad, but the opposite: good for both white and black students!”
Not that they would win on that argument (nor do I advocate it), but wouldn’t it be at least arguable? The fact remained that Arkansas never had the chance to present evidence so under traditional doctrines, res judicata shouldn’t have applied to them under Brown.
Arkansas refused to participate in Brown v. Board II, the one where the court crafted remedies. So it wasn’t just “you lose” so much as “you lose because you didn’t bother to appear as an amicus in Brown”.
[QUOTE=Brown v. Board I]
We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. [Footnote 12]
Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question – the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term. [Footnote 13] The Attorney General of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.
[/QUOTE]
What type of jurisprudence is that? It’s pretty much unheard of in any other context. Imagine if we had a disagreement over the terms of a roofing contract. Is it proper for the court to not only rule on our dispute but invite everyone else in the state who has similar disputes to submit amicus and then be bound by the decision? If you don’t submit an amicus, you are still bound? I’ve never heard of a forced joining of parties like this.
Further, Brown II was only about remedies, if Arkansas felt it could distinguish Brown I then it certainly shouldn’t have participated in a case that admits it already lost.
Don’t get me wrong, Brown was absolutely correct in its holding, but the remedies it proposed were unprecedented and arguably not in the power of the Court.
I thought, and I may be wrong, that the SCOTUS has the power to broaden their decision to however wide they choose, or narrow it to any length they can reason. In Brown, they wanted to get rid of segregation and tailored their ruling to eliminate it. In Lawrence and Windsor or Perry, they had the option to but declined.
It’s not really comparable. There are a finite number of states, and an even smaller number which were segregated. It’s not as though there were individual citizens who would have standing to bring pro-segregation cases.
I think the answers in this thread are a bit confusing, so I’ll attempt to simplify this as much as possible. Buckle in…
Let’s say there are two states: Brightopia and Gregtopia. Both are in the 15th Circuit of the US. They both have SSM bans. I sue Brightopia in the District of Brightopia Court (this is a Federal court). The District of Brightopia Court issues the ruling overturning the ban. What does this ruling consist of? One way to think of it is that it consists of (1) findings of fact, (2) general statements of legal principles, (3) application of those legal principals to Brightopia’s SSM ban and (4) a statement that Brightopia’s SSM ban is unconstitutional and (5) an order that Brightopia has to change its laws to conform to the ruling.
This ruling, however, doesn’t apply to Gregtopia. Gregtopia has its own district court and Gregtopia was not a party to my case. The court generally cannot issue an order against someone who isn’t a party. So, now we have a situation where Gregtopia’s SSM ban is ok, but Brightopia’s ban is not ok.
So, somebody has to go sue Gregtopia. So, you decide to sue. This is a brand new case. Can the District Court of Gregtopia look at my lawsuit to determine how it should rule? Sure it can, if it wants to. But it’s not obligated to, because the District Court of Brightopia is not a higher court. But, because this is a brand new case, the District Court of Gregtopia still has to hold a trial and make findings of fact and issue a ruling that applies to Gregtopia.
So, that’s the first scenario. Now for another scenario…
Let’s say that before you filed your case against Gregtopia, the state of Brightopia appealed my case to the 15th Circuit. Now, the 15th Circuit isn’t going to make new findings of fact. They are (usually) going to accept the findings from the District Court of Brightopia. Then they are going to issue a ruling which consists of some general legal principles, and apply those legal principles to Brightopia’s ban, hold that the ban is unconstitutional, and affirm the District Court of Brightopia’s order to the State of Brightopia to change their laws.
Ok, so now we have some general legal principles at the appellate level that indicate why Brightopia’s ban is unconstitutional. And Gregtopia is subject to the 15th Circuit’s rulings. So, Gregtopia might look at the ruling, realize its ban is unconstitutional, and change its laws (and this does routinely happen in the US). But, Gregtopia might not change its laws: maybe it doesn’t agree with the ruling, or maybe it thinks its ban is different enough that the ruling doesn’t apply, or maybe they can’t get a new law passed for political reasons, or maybe there’s just inertia. In that case, somebody has to go to court and get Gregtopia’s ban overturned.
So, now we get to the question of why doesn’t Gregtopia’s case just go in some bucket? Ok, well this is a new suit. The District Court of Gregtopia still has to make findings of fact regarding Gregtopia’s law. And then it has to apply the 15th Circuit’s ruling to those facts in order to issue a ruling against Gregtopia’s law. And in order to do all that, you have to have a new trial. There’s no bucket anywhere, because my case against Brightopia has already been resolved.
Ok, but let’s take a different scenario. What if you and I both sued our respective states simultaneously, and our cases reached the 15th Circuit at more or less the same time? Could the 15th Circuit put both cases in the same “bucket?” Sure, they can consolidate the cases and issue one ruling for both cases. So, that’s where your bucket analogy comes in.
Now, there’s a few complications here. The first is that all these cases are being appealed, and all the courts are issuing stays pending appeal. So, now we have another reason that Gregtopia might not voluntarily change its laws. Gregtopia might think that the Supreme Court will give it a more favorable ruling.
In addition, since all these cases are stayed pending appeal, that means that there’s actually no ruling yet that forces anyone to change their bans. Until the question of appeal is resolved by the Supreme Court (either they deny the appeal or the hear the case and make a ruling), there’s nothing that says that a state has to change its ban. Once the case has exhausted its appeals, then those rulings go into effect, and the states have to change their bans.
This is confusing, and I’ve tried to simplify it. But if you need clarification, I’ll try to peek in on this thread from time to time. But here are some main takeaways:
The court generally cannot issue a ruling against someone who is not a party to a suit.
The court cannot just guess or make an assumption that two laws from different states are the same. Courts have to do a finding of fact for each set of laws in order to make a ruling.
You generally cannot just import findings of fact from one lawsuit to another. Ok, there’s a whole list of exceptions to this, but if you start with the notion that findings of fact are not “reusable” from one case to another, then I think this will be clearer for you.
Ok, let me attempt this. This type of standing isn’t really my area of law, but I’ll take a stab.
For Oregon, it appears no state official tried to appeal the case. NOM, which is a private organization, tried to appeal, and was denied standing by the 9th Circuit, and then the Supreme Court rejected NOM’s appeal for a stay, but it appears they didn’t give a reason. However, the current court has traditionally frowned on private citizen standing to intervene on the state’s behalf, so that’s probably the reason NOM couldn’t appeal on behalf of Oregon.
For Pennsylvania, a clerk did try to intervene and appeal the district court ruling. The court basically said that she didn’t have standing based on the claims she made. Which doesn’t necessarily prohibit any clerk from having standing, but her particular claims for standing didn’t meet the standing test. I’ve read the ruling, but I’d have to blow out this thread to go into detail. But the ruling, in part, is based on the way Pennsylvania law ascribes duties to its clerks. So, this ruling is not necessarily applicable to other states.
I’m also not sure that your statement of Bostick is correct. It looks like the county clerk was already a party to the case from the beginning, being sued by the plaintiffs (in addition to the governor and the registrar of vital records). The governer removed himself from the case after the 4th Circuit Ruling. Since the clerk was the one getting sued, the clerk didn’t have to establish standing.
On re-read, change the last paragraph in my last post:
I’m also not sure that your statement of Bostick is correct. It looks like the county clerk (in addition to the governor and the registrar of vital records) was already a party to the case from the beginning, being sued by the plaintiffs. The governer removed himself from the case after the 4th Circuit Ruling. Since the clerk was the one getting sued, the clerk didn’t have to establish standing.
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Previously, my statement read like the governor and registrar were plaintiffs in the original suit, but they were actually defendants in the original suit.
I think another clarification is in order here. There was a bunch of confusion surrounding what the legal rules were going to be in order to desegregate, and Brown II basically gives guidelines to the District Courts on how to craft their desegregation orders. The segregated states were invited to submit briefs to help the Supreme Court craft the ruling. It was basically the Supreme Court saying, “You’re going to be in District Court soon, so if you have anything you want to say before we rule, now’s the time to do it.”
