6th Circuit Decides 2 Cases Growing Out of Kim Davis' Marriage License Refusals

In Ermold v. Davis, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals held that sovereign immunity protects former Rowan County, Kentucky Clerk Kim Davis, and her successor in office, from suit for damages in their official capacity. However, the court went on, Davis may still be sued in her individual capacity, and she is not entitled to qualified immunity in that suit. The case grew out of the widely-publicized refusal of Davis to issue marriage licenses to same-sex couples, even after the U.S. Supreme Court's Obergefell decision. (See prior posting.) Two same-sex couples who were denied marriage licenses sued.

The 3-judge panel split 2-1 in their analysis of why Davis was not entitled to qualified immunity.  Judge Griffin, joined by Judge White, held that Obergefell clearly established a right for same-sex marriage and eliminated the need to use a tiers-of-scrutiny analysis in cases such as this.  Judge Bush held that a tiers-of-scrutiny analysis should be used, but that Davis' conduct does not survive even rational basis review.

In a related case, Miller v. Caudill, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals affirmed the award of $222,695 in attorneys' fees to several same-sex couples who had obtained a preliminary injunction against Davis' policy, but litigated no further after Davis' deputy clerks agreed to issue the licenses.  The 6th Circuit concluded that plaintiffs qualified as a "prevailing party" entitled to attorneys' fees under 42 USC §1988, and that these fees should be paid by the state of Kentucky rather than Rowan County.  The Court said in part:

A win is a win—regardless of whether the winner runs up the score. To prevail, then, plaintiffs didn’t need to obtain duplicative relief in every form that they originally sought it. They wanted the opportunity to obtain marriage licenses in Rowan County, and the preliminary injunction gave them exactly that.

Louisville Courier Journal reports on this decision. [Thanks to Tom Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Adriaan Lanni & Victor Bers, Disqualified Olympians: The Skeptical Greek View of Divine Judges, (Mermerlstein & Holtz, eds., The Divine Courtroom in Comparative Perspective (Brill 2014)).
• Michael A. Helfand, Identifying Substantial Burdens, (University of Illinois Law Review, Vol. 2016).
• Louis-Léon Christians, Ideologically Oriented Enterprises Faced with the Reconfiguration of Ethics and Spiritual Management, (BYU Law Review, Volume 2014, Issue 3, August 2015).
• Rene Provost, Centaur Jurisprudence: Culture Before the Law, (René Provost ed., Culture in the Domains of Law (Cambridge University Press), Forthcoming).

From SSRN (Non-U.S. Law):

• Amnon Lehavi, Residential Communities in a Heterogeneous Society: The Case of Israel, (in: Private Communities and Urban Governance: Theoretical and Comparative Perspectives, A. Lehavi (Ed.), New York: Springer (2016, Forthcoming)).
• Khaled A. Beydoun, Beyond the Paris Attacks: Unveiling the War within French Counterterror Policy, (American University Law Review, Forthcoming).
• Maria Elizabeth Marais & Loot J. Pretorius, A Contextual Analysis of the Hate Speech Provisions of the Equality Act, (Potchefstroom Electronic Law Journal, Vol. 18, No. 4, 2015).

From SSRN (Same-Sex Marriage):

• Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights, (Boston University Law Review, Vol. 95, No. 3, 2015).
• Robin Fretwell Wilson, Bargaining for Religious Accommodations: Same-Sex Marriage and LGBT Rights After Hobby Lobby, (The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders, Zoë Robinson, eds., Oxford University Press, 2016)).
• Stephen Matthew Feldman, (Same) Sex, Lies, and Democracy: Tradition, Religion, and Substantive Due Process (With an Emphasis on Obergefell v. Hodges), (24 William & Mary Bill of Rights 341 (2015)).
• Yuvraj Joshi, The Respectable Dignity of Obergefell v. Hodges, (California Law Review Circuit, Vol. 6, 2015).

Louisiana State Court Invalidates State's Same-Sex Marriage Bans

Yesterday, a Louisiana state trial court declared the state's ban on same-sex marriage and its refusal to recognize same-sex marriages performed elsewhere unconstitutional.  The full text of the opinion has apparently not yet been publicly released, but BuzzFeed News reports that it was permitted to review a copy of the decision on the condition that it not post it or quote directly from it. (The decision was sealed because it involves the adoption of a minor.) BuzzFeed reports that the 23-page opinion invalidates the bans on the basis of the equal protection, due process and Full-Faith-And-Credit clauses. The Louisiana Department of Justice plans to appeal directly to the state Supreme Court and has already asked the trial court to suspend its order pending appeal. The trial court's invalidation of the state's same sex marriage ban comes less than a month after a Louisiana federal district court upheld the ban. (See prior posting.)

UPDATE: Here is the full opinion in Costanza v. Caldwell, (LA Dist. Ct., Sept. 22, 2014).

South Dakota Suit Challenges Ban on Same-Sex Marriage

On Thursday, six couples filed a lawsuit in federal district court in South Dakota challenging the constitutionality of South Dakota's constitutional and statutory ban on same-sex marriage.  The complaint (full text) in Rosenbrahn v.  Daugaard, (D SD, filed 5/22/2014), contends that the ban violates the due process and equal protection clauses of the 14th Amendment, and that the refusal to recognize same-sex marriages performed elsewhere also violates plaintiffs' right to travel. As reported by AP, South Dakota Attorney General Marty Jackley says that he is obligated by law to defend the state's ban.  With the filing of this lawsuit, only North Dakota with a ban on same-sex marriage that has not been challenged in the courts.

French Parliament Approves Same-Sex Marriage

In France yesterday, the lower house of Parliament, the National Assembly, by a vote of 331-225, approved a bill legalizing same-sex marriage. The bill was approved by the Senate earlier this month. Legifrance has links to the text of the bill, reports and legislative votes (all in French). As reported by CNN and the New York Times, a group of senators have filed a challenge with the Constitutional Council, which has a month to rule on the law's constitutionality.  It is expected that the bill will be upheld and that President François Hollande will sign it in time for the first same-sex marriages to take place this summer. If finally approved, France will be the ninth European country to permit same-sex marriage. The others are Belgium, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden. (Background.)

District Court Invalidates Alabama Same-Sex Marriage Bans

In Searcy v. Strange, (SD AL, Jan. 23, 2015), an Alabama federal district court invalidated Alabama statutory and constitutonal provisions that bar same-sex marriage.  The court found that the provisions are unconstitutional under the 14th Amendment's Due Process and Equal Protection clauses.  This makes Alabama the 37th state in which same-sex marriage is legal.  According to the Christian Science Monitor, Alabama's Attorney General has filed a motion asking the court to stay its ruling until the U.S. Supreme Court decides cases it has agreed to review on same-sex marraige.

UPDATE: In an opinion (full text) issued on Jan. 25, the district court denied an indefinite stay of its ruling, but granted a 14-day stay so the 11th Circuit can decide if a further stay is warranted. The court also said that before the expiration of its 14-day stay, it will issue an additional order addressing plaintiffs' request for a clarification of its injunction order.

Suit Challenges Oregon Same-Sex Marriage Ban

According to the Willamette Week, two same-sex couples filed suit in federal district court in Oregon this week challenging Oregon's state constitutional ban on same-sex marriage. One of the couples wants to marry in Oregon; the other couple wants its Canadian same-sex marriage recognized in Oregon. The complaint (full text) in Geiger v. Kitzhaber, (D OR, filed 10/15, 2013), contends that the Oregon constitutional ban violates the equal protection and due process clauses of the 14th Amendment. [Thanks to Alliance Alert for the lead.]

Supreme Court Denies Review In Same-Sex Marriage Cases From 5 States

The U.S. Supreme Court today denied certiorari in seven same-sex marriage cases from 5 states that had been decided by various circuit courts. (Order List). All of the Circuit Court decision had invalidated bans on same-sex marriage and/or recognition of same-sex marriages performed elsewhere. The cases are:

Herbert v. Kitchen (Docket No. 14-124) (Utah)
Smith v. Bishop (Docket No. 14-136) (Oklahoma)
Rainey v. Bostic (Docket No. 14-153) (Virginia)
Schaefer v. Bostic (Docket No. 14-225) (Virginia)
McQuigg v. Bostic (Docket No. 14-251) (Virginia)
Bogan v. Baskin (Docket No. 14-277) (Indiana)
Walker v. Wolf (14-278) (Wisconsin)

AP reports on the Court's action.

House Amendments To Defense Bill Bar Using Military Facilities For Gay Marriages

On Thursday, the U.S. House of Representatives voted on a number of amendments to the 2012 Defense Appropriations Bill. The Daily Caller reports on one amendment, which passed 236-84, introduced by Rep. Tim Huelskamp of Kansas, that bars same-sex marriages being performed on military bases. The amendment provides: "None of the funds made available by this Act may be used to implement the curriculum of the Chaplain Corps Tier 1 DADT repeal training dated April 11, 2011."  From the Congressional Record, here is the explanation of the amendment by Rep. Huelskamp:

Earlier this year, the Navy chief of chaplains announced that military chaplains who desire to perform same-sex marriages would be allowed to do so following the repeal of the policy known as Don't Ask, Don't Tell. The directive said that chaplains could perform same-sex ceremonies in such States where such marriages and unions are legal. Apparently, the Navy has recently backed away from such instruction, but tepidly and weakly, and in a way that leaves the door open to the reinstatement of this policy.

This amendment I offer will prohibit the enforcement of the directive of allowing chaplains to perform same-sex marriages on Navy bases regardless of whatever a State's law is on gay marriage.

... As the Navy and other military branches prepare for the repeal of this 1993 law, hours upon hours of sensitivity training have been presented to men and women in uniform. Such instruction has included warning that the failure to embrace alternative lifestyles could result in penalties for serv ice mem bers.

What will happen to chaplains who decline to officiate over same-sex ceremonies? The directive states that chaplains ``may'' perform same-sex civil marriage ceremonies. I fear that chaplains who refuse to perform these ceremonies may find themselves under attack and their careers threatened.

Madam Chair, we must ensure the religious liberty of all military members, particularly that of chaplains. In my family, I've had a military chaplain who has served for more than approximately 4 decades, so this is particularly important to me, personally.

(See prior related posting.) The House on Thursday and Friday also passed two additional amendments to the Defense Appropriation Bill  (1, 2) that appear to achieve the same purpose. They prohibit use of any funds in contravention of the Defense of Marriage Act.

Supreme Court Rejects Attempt By County Clerk To Appeal Pennsylvania Same-Sex Marriage Decision

As reported by SCOTUS Blog, on July 9 U.S. Supreme Court Justice Samuel Alito denied an application for a stay filed by a Pennsylvania clerk of courts.  The applicant was seeking to intervene in a lawsuit decided by a district court in order to appeal the district court's invalidation of Pennsylvania's ban on same-sex marriage. State officials had declined to appeal.  The Supreme Court's docket entry in Santai-Gaffney v. Whitewood denying the application to intervene cited  the Court's denial of a stay last month in an attempt by the National Organization for Marriage to intervene to appeal the invalidation of Oregon's same-sex marriage ban.

Pastor Brings Unusual Anti-Gay Marriage Protest To Courthouse

In Jackson, Mississippi on Friday, a Baptist pastor brought an unusual protest against the legalization of same-sex marriage to the federal courthouse. Christian Post reports that Reverend Edward James of Bertha Chapel Missionary Baptist Church brought a horse clothed in a wedding dress, with white flowers in its harness, to the courthouse, along with a protest sign reading in part: "Do you take this horse to be your unnatural wedded spouse.... This might even be possible if the ban on same-sex marriage is lifted...."  James hopes to change the mind of the federal district judge who struck down Mississipi's same-sex marriage ban last month.  The court's order has been stayed pending appeal. (See  prior posting.)

Courts Move To Finalize Compliance With Obergefell, With Scattered Resistance

In the wake of the Supreme Court's Obergefell decision, the U.S. 5th Circuit Court of Appeals yesterday issued opinions in three same-sex marriage cases pending on appeal, ordering federal district courts in Mississippi (Campaign for Southern Equality v. Bryant), Louisiana (Robichearx v. Caldwell) and Texas (DeLeon v. Abbott) to enter final judgments for plaintiffs challenging same-sex marriage bans by July 17. In the Louisiana case, the court noted that speedy action was particularly necessary because of the declining health of one of the plaintiffs.

In Alabama, a federal district court judge issued an opinion yesterday in Strawser v. Strange, clarifying that the court's preliminary injunction barring enforcement of Alabama laws barring same-sex marriage is now in effect.  Meanwhile, AP reports scattered resistance to the Supreme Court's decision, with a a few judges and clerks in Alabama, Kentucky and Texas deciding to stop issuing any marriage licenses to anyone.

Was Religious Accommodation Needed For SCOTUS Arguments In Same-Sex Marriage Cases?-- An Editorial Commentary

While much has been written about the intersection of religious belief and same-sex marriage, next week's oral arguments before the U.S. Supreme Court in two same-sex marriage cases pose another religious issue that has hardly been noticed.  Oral arguments are scheduled for March 26 in Hollingsworth v. Perry, and on March 27 in United States v. Windsor. These dates are the first two days of Passover-- holidays in the Jewish calendar on which traditional Jews abstain from work.  One wonders if anyone involved sought, or thought about, religious accommodation.  Three Supreme Court Justices are Jewish (Justices Breyer, Ginsburg and Kagan). One of the eight attorneys presenting oral arguments is Jewish (Roberta Kaplan). The individual who created the legal issue in one of the cases was Jewish-- Edie Windsor's deceased partner, Thea Spyer. Amicus briefs in the cases have been filed by the American Jewish Committee, and by a broad coalition of religious groups that include national organizations representing the Conservative, Reform and Reconstructionist branches of Judaism.

Among the numerous rallies, demonstrations and events planned in Washington next week to coincide with oral arguments, the United for Marriage Coalition has scheduled "Parting the Waters: A Seder for Love, Liberation & Justice" on Tuesday evening, March 26.  So at least someone has noticed the significance of the dates.

Recent Articles of Interest

From SSRN:

• Nathan S. Chapman, The Weight of Judgment, (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, John Witte, Jr. (London: Routledge), Forthcoming).
• David A. Skeel, Christianity and Bankruptcy, (Forthcoming In Christianity and Market Regulation (Daniel Crane & Samuel Gregg eds., Cambridge University Press 2020).
• Carlo Pedrioli, Is Incitement on the Internet Easier to Punish than Incitement on Television? A Case Study of the Koran-Burning of Florida Pastor Terry Jones, (Free Speech, Privacy and Media: Comparative Perspectives 49 (Russell L. Weaver, Mark D. Cole, Steven I. Friedland, Duncan Fairgrieve, András Koltay & Arnaud Raynouard eds., 2019)).
• Richard F. Duncan, Defense Against the Dark Arts: Justice Jackson, Justice Kennedy and the No-Compelled-Speech Doctrine, (December 19, 2019).
• David S. Cohen, The Promise and Peril of a Common Law Right to Abortion (Symposium Review of Anita Bernstein's The Common Law Inside the Female Body), (Northwestern University Law Review, Vol. 114, 2019).
• Meghan Boone, Reproductive Due Process, (The George Washington University Law Review, 2020 (Forthcoming)).
• Kathy L. Cerminara, Cruzan's Legacy in Autonomy, (SMU Law Review, Forthcoming).

From SSRN (Non-US Law):

• Iqra Saleem Khan, Consent in Marriage: A Radical Feminist Analysis of Pakistani Law, (William & Mary Journal of Women and the Law, Vol. 26, No. 3, 2020).
• Derek Ross & Deina Warren, Religious Equality: Restoring Section 15's Hollowed Ground, (91 Supreme Court Law Review (2d), 2019).
• Assaf Likhovski, A Colonial Legal Laboratory? Jurisprudential Innovation in the British Empire, (American Journal of Comparative Law (Forthcoming)).
• Sahar F. Aziz, 'Whosoever Sees An Evil' - Muslim Americans' Human Rights Advocacy, (Oxford Research Encyclopedia of Religion (Spring 2020)).
• P. Y. Lo, Hong Kong Courts and Same-Sex Marriage: Could Judicial Recognition of Spouse of Same-Sex Marriage Celebrated in Foreign Jurisdictions Be the Prelude for Judicial Recognition of Same-Sex Marriage Locally? (December 21, 2019).
• Alessio Romarri, Do Far-Right Mayors Increase the Probability of Hate Crimes? Evidence From Italy, (December 19, 2019).

UPDATE: Vol. 34, Issue 2 of the Journal of Law and Religion has been published online and is available without charge until Feb. 15.

Judicial Ethics Complaint Cites Alabama Justice's Remarks On Same-Sex Marriage Precedent

The Southern Poverty Law Center yesterday filed an ethics complaint (full text) with the Judicial Inquiry Commission of Alabama alleging that Alabama Supreme Court Justice Tom Parker violated the state's Code of Judicial Ethics when, in a radio interview, he suggested that the Alabama Supreme Court defy the U.S. Supreme Court's Obergefell decision legalizing same-sex marriage. As summarized by an SPLC press release:

The complaint cites comments made by Parker during an Oct. 6 radio show, “Focal Point,” hosted by Bryan Fischer of the American Family Association. Fischer has used his radio show to promote outrageous, denigrating claims about LGBT people, Muslims, Native Americans and African Americans.

In the interview, Parker not only discussed a marriage equality case pending before the Alabama Supreme Court – Ex parte State v. King – he voiced his personal opinion about the case and suggested that Alabama should defy the U.S. Supreme Court decision legalizing same-sex marriage in order to lead to a “revival of what we need in this country.”

District Court Upholds Louisiana's Same-Sex Marriage Ban

A Louisiana federal district court yesterday became only the second court (see prior posting) after the U.S. Supreme Court's Windsor decision to uphold a state law banning same-sex marriage.  In Robicheaux v. Caldwell,  (ED LA, Sept. 3, 2014), the court rejected the argument that heightened scrutiny should apply, and concluded that Louisiana had a rational basis for addressing the meaning of marriage through the democratic process. It held:

This Court is persuaded that Louisiana has a legitimate interest...whether obsolete in the opinion of some, or not, in the opinion of others...in linking children to an intact family formed by their two biological parents.... 

This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos.  Courts that, in the words of Justice Scalia in a different context ... appear to have assumed the mantle of a legislative body. 

SCOTUSblog reports on the decision.

9th Circuit Hears Oral Arguments In 3 Same-Sex Marriage Cases

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in cases from Idaho, Nevada and Hawaii challenging same-sex marriage bans. Audio recordings of the full arguments in each of the cases is available: Latta v. Otter (Idaho); Sevcik v. Sandoval (Nevada); Jackson  v. Abercrombie  (Hawaii). Subsequent to the district court opinion being appealed, Hawaii legalized same-sex marriage. (See prior posting.)  MSNBC, reporting on the oral arguments, called it "a rough day for marriage equality opponents."

Nigeria and Uganda Parliaments Pass Harsh Anti-Gay Laws; Final Approval By President/ Prime Minister Uncertain

Daily Trust reports that last week Nigeria's National Assembly gave final approval to the conference committee's version of the Same-Sex Marriage Prohibition Bill 2011.  It imposes a 14-year prison sentence on same-sex couples who enter a marriage or civil union.  Ten year prison sentences are prescribed for anyone who witnesses or aids or abets a same-sex union.  Section 2 of the bill provides:

Any person, who registers, operates or participates in gay clubs, societies and organisations or directly or indirectly make public show of same sex amorous relationship in Nigeria commits an offence and shall each be liable on conviction to a term of 10 years in prison.

The bill still needs the signature of President Goodluck Jonathan to become law.  Amnesty International on Friday called on the President to reject the bill. (AFP).

Meanwhile, on Friday, Uganda's Parliament passed an anti-homosexuality law described as draconian.  The Guardian reports on some of its provisions:

British campaigner Peter Tatchell noted that the bill extends the existing penalty of life imprisonment for same-sex intercourse to all other same-sex behaviour, including the mere touching of another person with the intent to have homosexual relations.

Promoting homosexuality and aiding and abetting others to commit homosexual acts will be punishable by five to seven years jail.... "These new crimes are likely to include membership and funding of LGBT organisations, advocacy of LGBT human rights, supportive counselling of LGBT persons and the provision of condoms or safer sex advice to LGBT people.

"A person in authority – gay or heterosexual – who fails to report violators to the police within 24 hours will be sentenced to three years behind bars."

He added: "Astonishingly, the new legislation has an extra-territorial jurisdiction. It will also apply to Ugandan citizens or foreign residents of Uganda who commit these 'crimes' while abroad, in countries where such behaviour is not a criminal offence. Violators overseas will be subjected to extradition, trial and punishment in Uganda.

The Guardian adds:

[The bill] was opposed by Ugandan prime minister Amama Mbabazi, who argued that not enough MPs were present for a quorum, a challenge that might yet discourage Museveni from signing the bill into law. The threat of a withdrawal of western aid could also play into his decision.

Texas Supreme Court Dismisses Attempt To Void Early Same-Sex Marriage

As reported by the Austin Statesman, the Texas Supreme Court today unanimously dismissed as moot a petition for mandamus filed by Texas Attorney General Ken Paxton seeking to invalidate a same-sex marriage performed in the state four months before the U.S. Supreme Court decided the Obergefell case creating marriage equality throughout the United States.  However in the Texas case, In re State of Texas, (April 15, 2016), Justice Willett in a concurring opinion joined by Justice Devine (full text) took the lower court to task for ignoring a procedural statute in Texas that requires Texas courts to notify the attorney general of state constitutional challenges and give the state 45 days to weigh in before the case is decided. Justice Brown in a concurring opinion joined by Justice Devine (full text) argued that the trial court procedurally should not have used the device of a temporary restraining order to allow the same-sex marriage to go forward, after which plaintiffs dismissed their lawsuit. [Thanks to How Appealing for the lead.]

New Hampshire House Refuses To Backtrack On Same-Sex Marriage

The Concord (NH) Union Leader reports that on Monday the New Hampshire House of Representatives voted down two proposals that would have backed away from the state's recognition of same-sex marriage. By a vote of 201-135, the House defeated a proposed state constitutional amendment (CACR 28) that would have defined marriage as being only between a man and a woman. An hour later, by a vote of 210-109, the House defeated HB 1590 that would have enacted a statutory repeal of same-sex marriage in the state.