Supreme Court Says States Must License and Recognize Same-Sex Marriage-- A Review of Justice Kennedy's Majority Opinion

Today in Obergefell v. Hodges, (Sup. Ct., June 26, 2015), in a 5-4 decision the U.S. Supreme Court held that the 14th Amendment's due process and equal protection clauses require states to license same-sex marriages and to recognize same-sex marriages lawfully licensed and performed in other states. Justice Kennedy wrote a rather tightly reasoned majority opinion which was joined by Justices Ginsberg, Breyer, Sotomayor and Kagan.  He began by tracing changes in the concept of marriage that have occurred over time, saying in part:

There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex. That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.... 

The petitioners acknowledge this history but contend that these cases cannot end there.... Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment....

The history of marriage is one of both continuity and change.... For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.... As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity....  As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.... 

[T]he Court has long held the right to marry is protected by the Constitution... It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.... In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond.... The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.... A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. ... A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.... Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order ...

Justice Kennedy expanded on the third of these premises:

Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. ...

Justice Kennedy went on:

[B]y virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.... 

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied....

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other.... Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry....

Justice Kennedy then addressed the concerns of those who oppose same-sex marriage on religious grounds:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

Each of the 4 dissenting justices filed a separate dissent.  A later posting will review those.  UPDATE: Here is a posting summarizing the dissents.

Texas AG, Critical of Obergefell, Issues Opinion On Religious Accommodation For Clerks and Judges

Texas Attorney General Ken Paxton issued a strong statement (full text) on Friday criticizing the U.S. Supreme Court's decision on same sex marriage, saying in part:

Today’s ruling by five Justices of the U.S. Supreme Court marks a radical departure from countless generations of societal law and tradition. The impact of this opinion on our society and the familial fabric of our nation will be profound. Far from a victory for anyone, this is instead a dilution of marriage as a societal institution.

What is most disturbing is the extent to which this opinion is yet another assault on the actual text of the U.S. Constitution and the rule of law itself....  The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage.

Then on Sunday, Paxton issued an Attorney General's Opiinion (full text) on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. His statement (full text) accompanying the issuance of the opinion is a good deal more strident than the full opinion itself.  Paxton's statement says in part:

A ruling by the U.S. Supreme Court is considered the law of the land, but a judge-made edict that is not based in the law or the Constitution diminishes faith in our system of government and the rule of law.

Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution. Here is where things currently stand:

Pursuant to the Court’s flawed ruling, the U.S. District Court for the Western District of Texas issued an injunction against the enforcement of Texas marriage laws that define marriage as one man and one woman and therefore those laws currently are enjoined from being enforced by county clerks and justices of the peace. There is not, however, a court order in place in Texas to issue any particular license whatsoever – only the flawed direction by the U.S. Supreme Court on Constitutionality and applicable state laws.

Importantly, the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty

Paxton's opinion itself carefully provides that religious accommodation "may" be permitted:

A county clerk has a statutory right to delegate a duty to a deputy clerk, including theissuance of same-sex marriage licenses that would violate the county clerk's sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government's least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.... Importantly, the strength of any claim under employment laws or the Religious Freedom Restoration Acts depends on the particular facts of each case....

Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.

If instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk "shall" issue marriage licenses to conforming applications.

Moving then to the question of whether judges and justices of the peace may refuse on religious grounds to conduct same-sex marriage ceremonies, Paxton says in part:

Under the Religious Freedom Restoration Acts, justices of the peace and judges may claim that the government forcing them to conduct a same-sex wedding ceremony over their religious objection, when other authorized individuals have no objection, is not the least restrictive means of the government ensuring that the ceremonies occur, assuming that is compelling governmental interest. Again, the strength of any such claim depends on the particular facts.

The Houston Chronicle reports on developments.

California Federal District Court Strikes Down Proposition 8, The State's Ban On Same-Sex Marriage

In a 138-page opinion today, a federal district court in San Francisco held that California's Proposition 8 that bans same-sex marriage is unconstitutional. In Perry v. Schwarzenegger,(ND CA, Aug. 4, 2010), the court held that

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same sex couples and has not suffered any demonstrated harm as a result....Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

In approaching the substantive due process argument, the court said that

the parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.....

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.... Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.....

The court concluded that domestic partnerships do not fulfill the state's due process obligation, because they "do not provide the same social meaning as marriage."

Moving to the equal protection issue, the court said:

The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present.....

Ultimately the court avoided deciding whether that history of discrimination triggered a strict scrutiny review, because, in its view, Proposition 8 failed even the rational basis test. The court rejected a series of purported justification for treating same-sex couples differently.  It said the evidence showed that same-sex marriage has no adverse effect on society or the institution of marriage and that "tradition alone ... cannot form a rational basis for a law."  Proponents also argued that Proposition 8 protects the First Amendment freedom of those who oppose same-sex marriage. The court responded:

To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying ..., those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.....

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples..... Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate..... [M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation..... Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.

In Tennessee, A Rare Win For Opponents of Same-Sex Marriage

In the face of a long string of federal cases in recent months striking down state laws that bar recognition of same-sex marriage, the opponents of same-sex marriage last week realized a rare victory. In Borman v. Pyles-Borman, (TN Cir. Ct., Aug. 5, 2014), a Tennessee state trial court upheld Tennessee's ban on recognizing same-sex marriages performed in other states. The decision comes in a divorce case involving a same-sex couple legally married in Iowa, but now residing in Tennessee.  A Tennessee court presumably cannot grant a divorce unless the marriage is first recognized in the state.

In upholding Tennessee's anti-recognition law against an equal protection challenge, the court wrote in part:

In the Windsor case the Supreme Court opines that if a state finds same-sex marriage to be valid, the Federal Government cannot trump that State's law. The Supreme Court does not go the fmal step and fmd that a State that defines marriages as a union of one (1) man and one (l) woman is unconstitutional. Further, the Supreme Court does not find that one State's refusal to accept as valid another States valid same-sex marriage to be in violation of the U.S. Constitution.... 

The Court finds that marriage is·a fundamental right. However, neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state's laws extends beyond the traditional definition of marriage as a union between one (1) man and one (1) woman.... The Legislative Branch of Tennessee and the voters of Tennessee have said that the definition of marriage should be as it always has been.....

The court then adopts language from the state's brief in finding a rational basis for the state's traditional definition.

Moving to the full-faith-and-credit challenge, the court concludes:

The laws of Iowa concerning same sex marriage is so diametrically opposed to Tennessee's laws, and Tennessee's own legitimate public policy concerning same-sex marriage, that Tennessee is not required by the U.S. Constitution to give full faith and credit to a valid marriage of a same-sex couple in Iowa. 

Yesterday Liberty Counsel issued a press release announcing the decision. Earlier this month, the U.S. 6th Circuit Court of Appeals heard oral arguments in a separate challenge to Tennesseee's marriage recognition laws. (See prior posting.)

The Dissents In Today's Supreme Court Same-Sex Marriage Decision

Following up my earlier posting on Justice Kennedy's majority opinion today in Obergefell v. Hodges (the Supreme Court's decision deciding that states must permit and recognize same-sex marriage), here is a summary of the four dissents:

Chief Justice Roberts dissent (joined by Justices Scalia and Thomas) argued that the majority opinion was a return to the long-rejected judicial policy-making symbolized by the Lochner case:

[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. ...

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition....

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry.... In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policy making that characterized discredited decisions such as Lochner v. New York.... Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society....

Emphasizing his central theme, the Chief Justice ended his dissent with the following paragraph:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Justice Scalia's dissent (joined by Justice Thomas) makes a similar point in somewhat more strident language:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. ...

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.

In making his point, Justice Scalia pointed out the unrepresentative character of the Supreme Court:

nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

Justice Thomas' dissent (joined by Justice Scalia) included a lengthy historical critique of the majority's understanding of the term "liberty" in the due process clause, saying in part:

Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it. 

Justice Alito's dissent (which Justices Scalia and Thomas joined) included a more direct discussion than did the other opinions of the position of those who continue to oppose same-sex marriage:

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.... We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

.... If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Study Released On State Anti-Discrimination Laws and Same-Sex Marriage

Earlier this week, the Becket Fund announced the release of a study titled Same-Sex Marriage and State Anti-Discrimination Laws. The Executive Summary says in part:

The survey revealed that over 350 separate state anti-discrimination provisions would likely be triggered by recognition of same-sex marriage.... Based on this data, we conclude that if same-sex marriage is recognized by courts or legislatures, people and institutions who have conscientious objections to facilitating same-sex marriage will likely be sued under existing anti-discrimination laws—laws never intended for that purpose. Lawsuits will likely arise when religious people or religious organizations choose, based on their sincerely held religious beliefs, not to hire individuals in same-sex marriages, refuse to extend spousal benefits to same-sex spouses, refuse to make their property or services available for same-sex marriage ceremonies or other events affirming same-sex marriage, or refuse to provide otherwise available housing to same-sex couples.

The study recommended that states "ensure that any recognition of same-sex marriage is preceded by robust exemptions to anti-discrimination rules." Along with the report, the Becket Fund published a useful chart on existing religious exemptions to anti-discrimination laws, by state.

NY Appeals Court Upholds Penalty On Wedding Venue That Refused To Host Same-Sex Ceremony

In Matter of Gifford v. McCarthy, (NY App. Div., Jan. 14, 2016), a New York state intermediate appellate court upheld a decision by the State Division of Human Rights imposing compensatory damages of $3000 and a civil fine of $10,000 on a for-profit wedding venue for refusing to host a same-sex marriage ceremony.  Liberty Ridge Farm rents space for, among other things, religious and secular wedding ceremonies and receptions.  One of the farm's owners told Melissa McCarthy that the farm did not host same-sex marriage ceremonies, though apparently it would have been willing to host the reception.  The court held that Liberty Ridge's wedding facilities are a "place of public accommodation" under the NY Human Rights Law and that discrimination against same-sex weddings is discrimination on the basis of sexual orientation.

The court went on to reject respondents federal and state free exercise claims, as well as their First Amendment compelled speech and expressive association defenses. It found the Human Rights Law to be a neutral law of general applicability.  The New York state constitution's free exercise clause requires a balancing of interests.  The court said:

While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination....  Balancing these competing interests, we conclude that petitioners failed to show that SDHR's determination constituted an unreasonable interference with the Giffords' religious freedom.

Rejecting respondents' First Amendment compelled speech argument, the court said:

Here, SDHR's determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all. The Giffords remain free to express whatever views they may have on the issue of same-sex marriage. The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples. Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage.

The Blaze reports on the decision.

Flurry of Court Filings Seeks To Clarify Status of Same-Sex Marriage In Florida

Florida counties find themselves uncertain about the legality of same-sex marriage in the state.  In August, in Grimsley v. Scott, a Florida federal district court issued a preliminary injunction barring various state officials from enforcing the state's ban on same-sex marriage, and ordering the Clerk of Court of Washington County, Florida to issue marriage licenses to a same-sex couple that brought the lawsuit. The court temporarily stayed these orders, but with the denial of further stays by higher courts (see prior posting), the orders are scheduled to take effect on Jan. 5. That leaves in some confusion the effect of the court's injunction.  On Dec. 24, the Clerk of Washington County filed an Emergency Motion for Clarification with the court asking it whether the court's injunction means that marriage licenses must be granted to all same-sex couples, or only to the couple specifically named in the injunction.

In response, the ACLU filed a legal memo (full text) arguing that because the court found Florida's same-sex marriage ban facially unconstitutional, the order means that all county clerks must issue marriage licenses to all same-sex couples. The court also ordered the state to respond to the motion for clarification. In its response (full text), the Attorney General said that the court is best situated to determine the reach of its own order.

Meanwhile this week an advocacy group filed state court lawsuits against two separate sets of local Florida officials seeking to prevent them from issuing licenses or performing same-sex marriages after Jan. 5. The complaint (full text) in Florida Family Action, Inc. v. Ramirez, (FL Cir. Ct., filed 12/29/2014), seeks a writ of mandamus ordering the Osceola County Clerk to deny any application for marriage license by same-sex couples.  The complaint (full text) in Florida Family Action, Inc. v. Dyer, (FL Cir. Ct., filed 12/30/2014) seeks a writ of mandamus barring the mayor of Orlando and a local judge from performing same-sex wedding ceremonies.  In both cases, the officials had expressed their intent to move ahead with same-sex marriages.

Avalanche of Same-Sex Marriage Legal Developments

In the last several days there has been an avalanche of legal developments relating to same-sex marriages:

Alaska:  Yesterday in Parnell v. Hamby, the U.S. Supreme Court issued an order denying a stay of a federal district court's decision striking down Alaska's same-sex marriage ban.

Arizona: in Majors v. Horne,(D AZ, Oct. 17, 2014) and Connolly v. Jeanes, (D AZ, Oct. 17, 2014), an Arizona federal district court in two short and substantially identical opinions struck down Arizona's ban on same-sex marriages, citing the 9th Circuit's decision earlier this month in Latta v. Otter striking down bans in Nevada and Idaho. (See prior posting.) State Attorney General Tom Horne announced he would not appeal and sent a letter to the state's 15 county clerks telling them that they may not deny marriage licenses to same-sex couples. Arizona Republic reports on developments.

Wyoming: In Guzzo v. Mead, (D WY, Oct. 17, 2014), a Wyoming federal district court granted a preliminary injunction against Wyoming's ban on same-sex marriage and recognition of same-sex marriages performed elsewhere.  However the court also granted a stay of its injunction until Oct. 23 to allow an appeal to the 10th Circuit or until an earlier date at which the state informs the court that it will not appeal. Governor Matt Mead's office announced that the state will file a notice with the district court that it will not appeal the decision.

Idaho: Two Christian ministers and their for-profit wedding chapel located across the street from the Kootenai County (Idaho) Clerk’s office (which issues marriage licenses) brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its anti-discrimination ordinance against them. The 63-page complaint (full text) in Knapp v. City of Coeur d'Alene, (D ID, filed Oct. 17, 2014) contends that the Ordinance violates plaintiffs' 1st and 14th Amendment rights as well as their rights under state law. Plaintiffs also filed a motion for a temporary restraining order or preliminary injunction.  ADF issued a press release announcing the filing of the lawsuit.

North Carolina: In North Carolina, the general counsel of the state's Administrative Office of the Courts on Oct. 14 issued a memo (full text) to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. Refusal to do so could lead to suspension, removal or even criminal charges. In response, on Thursday Rockingham County Magistrate Judge John Kallam who has religious objections to performing same-sex marriages resigned.  Alamance County Judge Jim Roberson, who originally suggested that Magistrates with religious objections be excused from performing same-sex ceremonies, issued a statement yesterday saying that magistrates in his county are required to perform ceremonies for same-sex couples. (Qnotes.)  Time Warner Cable News reported on developments.

Federal Government: On Friday, the U.S. Department of Justice announced that the federal government will now recognize same-sex marriages performed in Indiana, Oklahoma, Utah, Virginia, and Wisconsin for purposes of extending federal benefits. The action came after the Supreme Court refused review of Circuit Court decisions affecting those states. Apparently (though there is some slight ambiguity in DOJ's announcement) the federal government will also recognize same-sex marriages performed in Nevada and Idaho after the Supreme Court refused to stay the 9th Circuit's decision as to those states. (See prior posting.)

Church of England Issues Pastoral Guidance on Same-Sex Marriage

In Britain last week, the House of Bishops of the Church of England issued Pastoral Guidance on Same Sex Marriage (full text) in response to Parliament's enactment of the Marriage (Same Sex Couples) Act 2013. (See prior posting.) The Bishop's statement says in part [emphasis in original]:

12.  When the Act comes into force in March it will continue not to be legally possible for two persons of the same sex to marry according to the rites of the Church of England. In addition the Act makes clear that any rights and duties which currently exist in relation to being married in church of England churches do not extend to same sex couples....

18.  We recognise the many reasons why couples wish their relationships to have a formal status. These include the joys of exclusive commitment and also extend to the importance of legal recognition of the relationship. To that end, civil partnership continues to be available for same sex couples. Those same sex couples who choose to marry should be welcomed into the life of the worshipping community and not be subjected to questioning about their lifestyle. Neither they nor any children they care for should be denied access to the sacraments....

20.   The 2005 pastoral statement said that it would not be right to produce an authorized public liturgy in connection with the registering of civil partnerships and that clergy should not provide services of blessing for those who registered civil partnerships. The House did not wish, however,  to interfere with the clergy's pastoral discretion about when more informal kind of prayer, at the request of the couple, might be appropriate in the light of the circumstances....

21.  The same approach ,,, should therefore apply to couples who enter same-sex marriage, on the assumption that any prayer will be accompanied by pastoral discussion of the church's teaching and their reasons for departing from it. Services of blessing should not be provided. Clergy should respond pastorally and sensitively in other ways....

27.  The House is not, therefore, willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church's teaching in their lives.

Law & Religion UK blog has more on the Bishop's statement.

Commentary: Justice Kennedy's Equal Protection Analysis In Obergefell

One of the most interesting and least-commented upon aspects of Justice Kennedy's majority opinion (see prior posting) in Obergefell v. Hodges , last Friday's marriage equality decision, is his treatment of appellants' equal protection arguments.  The traditional approach-- and that used by most lower courts in their same-sex marriage decisions--is to determine the level of scrutiny that should be given to laws that discriminate on the basis of sexual orientation.  Do such classifications deserve "strict" scrutiny, "heightened" scrutiny or does there merely need to be a "rational basis" for use of the classification?  Past Supreme Court decisions on LGBT rights have been particularly opaque on this question.

Early in his opinion, Justice Kennedy laid groundwork that might have been used to flesh out a decision on the appropriate level of scrutiny.  He reviewed the history of discrimination against gays and lesbians-- one of the factors that traditionally figures into a determination of whether heightened scrutiny is called for.  However when he gets to the discussion of equal protection, Justice Kennedy largely ignores that groundwork, mentiioning the history of discrimination only in passing. Instead he treats the equal protection clause as a provision that primarily serves to emphasize the correctness of the fundamental-right-to-marriage conclusion that he has already reached.  That is, unlke most past cases in which substantive due process arguments were made largely to emphasize the severity of the denial of equal protection, here the roles of the two clauses are reversed. Justice Kennedy says in part:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.  The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right....

The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause....

Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged....

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

Justice Kennedy thus muddies the water even more as to the test for when discrimination against gays and lesbians, outside the context of marriage, violates the equal protection clause.    He also implicitly suggests that future governmental action burdening in some fashion the right to same-sex marriage should be tested primarily under the due process clause.  Thus if states enact laws permitting business owners with religious objections to refuse to provide goods or services for a same-sex marriage, it would seem that the provision's constitutionality should now be tested not by whether the government has a compelling interest to treat same-sex marriages differently than other marriages, but rather by whether the governmental action places a substantial obstacle or undue burden on the liberty interest of the marriage partners.

Suit Challenges Wyoming Ban On Same-Sex Marriage

National Center for Lesbian Rights announced yesterday that it has filed a state court lawsuit challenging Wyoming's statutory ban on same-sex marriage and the state's refusal to recognize same-sex marriages performed elsewhere. Unlike a number of other states, Wyoming's same-sex marriage ban is found only in state statutes, and is not embodied in the state constitution.  Also the state's refusal to recognize same-sex marriages from other jurisdictions is merely a practice that is not supported by specific statutory provisions.   The complaint (full text) in Courage v. Wyoming, (WY Dist. Ct., filed 3/5/2014), alleges that the statutory ban on same-sex marriage and the practice of refusing to recognize same-sex marriages from elsewhere violate the due process and equal protection clauses of the Wyoming state Constitution.  It also alleges that the practice of refusing to recognize out-of-state same sex marriages violates Wyoming statutory provision (Sec. 20-1-111) that provides: "All marriage contracts which are valid by the laws of the country in which contracted are valid in this state." Unlike suits filed recently in other states, this lawsuit does not contain claims that the state's ban on same-sex marriage violates the federal constitution. [Thanks to Alliance Alert for the lead.]

Understanding The Procedural Tangle In The Arkansas Same-Sex Marriage Challenge

As lower courts strike down same-sex marriage bans in various states, and state officials scramble to stay the orders and file appeals, the procedural tangles sometimes become difficult to penetrate.  So here is an attempt to clarify where things stand procedurally in one state-- Arkansas.

On May 9, an Arkansas state trial court (the Pulaski County Circuit Court which includes the city of Little Rock) held that the state's constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause.  (See prior posting.) A number of state and county officials filed an appeal with the Arkansas Supreme Court seeking an emergency stay of the trial court's order.  In Smith v. Wright, (AR Sup. Ct., May 14, 2014), the Arkansas Supreme Court dismissed the appeal without prejudice on the ground that the trial court's order was not a final adjudication of all the claims of the parties and so could not yet be appealed.  However it also held that reading the trial court's order carefully, the trial court had not issued a ruling as to Ark. Code Ann. § 9-11-208(b), prohibiting circuit and county clerks from issuing same-sex marriage licenses.  So, according to the Supreme Court, that prohibition was still in effect.

The next day, May 15, the Pulaski County Circuit Court responded by issuing three separate orders: (1) it denied a stay of its earlier ruling (full text of order); (2) the Court issued a final order permanently enjoining both the bans on same-sex marriage and the provision prohibiting circuit and county clerks from issuing licenses to same sex couples (full text of order); and (3) the court issued an order making its May 15 ruling that covered the ban on issuing marriage licenses retroactive to May 9 by an order entering the ruling nunc pro tunc. It said that the original omission of a reference to the section on issuance of licenses was an inadvertent clerical error. (Full text of ruling.) Lyle Denniston at Scotus Blog suggests that the nunc pro tunc order serves to protect those clerks who issued licenses between May 9 and 15.

According to AP, the Pulaski County clerk resumed issuing marriage licenses to same-sex couples shortly after the trial court's new orders.  Other counties though are awaiting legal advice. And after same-sex marriages resumed in Pulaski County, the Arkansas attorney general's office returned to the state Supreme Court and again asked for a stay of the trial court's order, pending appeal. [Thanks to Tom Rutledge for the lead.]

10th Circuit Wades Through Procedural Morass In Invalidating Part of Oklahoma's Same-Sex Marriage Provisions

The 10th Circuit last week, in a case generating 84 pages of opinions that focus extensively on procedural issues, struck down Oklahoma's ban on same-sex marriage, but dismissed for lack of standing the state's refusal to recognize same-sex marriages performed elsewhere.  The unusual posture of the case stemmed from the fact that the 10th Circuit had already struck down as violative of the 14th Amendment Utah's bans on same-sex sex marriage and Utah's ban on recognizing such marriages performed in other jurisdictions (see prior posting). So in Bishop v. Smith, (10th Cir., July 18, 2014), the question was whether anything distinguished the challenge to Oklahoma's laws from the already decided challenge to Utah's.

In a portion of the opinion that all 3 judges agreed to, the court held that the couple challenging Oklahoma's non-recognition provisions lacked standing because the only defendant in the case, the Clerk of Court for Tulsa County, has nothing to do with recognizing or not recognizing a marriage performed elsewhere. The majority, however, held that Oklahoma's ban on granting licences for same-sex marriages performed in the state is unconstitutional, as was Utah's similar ban. The majority's conclusion was not undermined by the fact that plaintiffs had challenged only Oklahoma's constitutional ban on same-sex marriage, and not the parallel statutory ban as well. The majority stayed their mandate pending disposition of any petition for certiorari that is filed with the Supreme Court.

Judge Holmes wrote a 27 page concurring opinion explaining why the district court had been correct in not relying on the "animus" theory in striking down Oklahoma's ban on marriage equality. Judge Kelley dissented in part, arguing that the couple challenging the ban on in-state same-sex marriages also lacked standing because they challenged only the state constitutional ban and not the parallel statutory prohibition.  Judge Kelley also disagreed on the merits, contending that "Same-gender marriage is a public policy choice for the states, and should not be
driven by a uniform, judge-made fundamental rights analysis." Scotus Blog reports on the decision.

Meanwhile, the U.S. Supreme Court last week issued an order (full text) in Herbert v. Evans, staying pending appeal to the 10th Circuit the district court's preliminary injunction requiring Utah to recognize same-sex marriages performed during the gap period before a district court's order was stayed. (See prior posting.) Here is the petition to Justice Sotomayor requesting the stay.

Analysis of Today's Same-Sex Marriage Cases-- Installment 1: A Separate Test For LGBT Discrimination?

[This is the first in what will be a series of posts discussing the holdings in today's same-sex marriage cases decided by the U.S. Supreme Court. This post focuses on the Court's invalidation of Section 3 of the federal Defense of Marriage Act.]

In United States v. Windsor today, the Supreme Court in a majority decision by Justice Kennedy held that DOMA's refusal to recognize a New York couple's same-sex marriage under federal law is unconstitutional. One important element of the majority's opinion is the court's continued development of a unique equal protection test for cases involving discrimination against gays and lesbians. The majority said in part:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government....  The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.... The avowed purpose and practical effect of the law here in question are 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....

DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.... By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect....

DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, 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.

As in other cases involving sexual orientation, the Court does not attempt to decide if gays and lesbians fit the traditional "suspect classification" test. Nor does it make fine distinctions regarding the level of scrutiny that must be applied in assessing the government's justifications for its actions. Instead, the majority asks more simply merely whether the legislative body's principal purpose was to harm or discriminate against gays and lesbians. In the past, this kind of "discriminatory purpose" analysis was used primarily in cases involving statutes that were facially neutral but had a disparate impact on a class of individuals. Where, as here, the discrimination was clear, traditionally the analysis was different.  It focused on the government's justification for the disparate treatment. Justice Scalia makes this point in dissent:

even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act....

[The majority] makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them.... I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them...

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. 

In rejecting an overarching equal protection paradigm, and instead developing separate tests for separate kinds of equal protection cases, the Court follows an earlier history of 1st Amendment free expression jurisprudence. The Court has often attempted to create an overarching 1st Amendment theory-- be it prior restraints, or "clear-and-present danger," or viewpoint neutrality.  However the Court in the end has moved to a Balkanized free expression jurisprudence-- separate tests for subversive speech, obscenity, symbolic expression, defamation, speech in the classroom... and more. We are perhaps witnessing the same development in equal protection cases.

Arkansas, Mississippi Same-Sex Marriage Bans Invalidated

Yesterday federal district courts in two more states-- Arkansas and Mississippi-- struck down state bans on same-sex marriage.  In each case, the ruling was stayed to permit an appeal.

In Austin v. Crane, (ED AR, Nov. 25, 2014), an Arkansas federal district court held that Arkansas' state constitutional and statutory restrictions on same-sex marriage "deny consenting adult same-sex couples their fundamental right to marry," and impose unconstitutional gender classifications. Issuance of an injunction was stayed to permit a timely appeal to the 8th Circuit. AP reports on developments.

In a separate case, last May an Arkansas state trial court struck down Arkansas' same-sex marriage ban (see prior posting), and that case is currently on appeal.  In yesterday's decision, the federal court rejected arguments that it should therefore abstain.

In Campaign for Southern Equality v. Bryant, (SD MS, Nov. 25, 2014), a Mississippi federal district court held that:

Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi’s same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The court issued a preliminary injunction, but stayed it for 14 days to permit an appeal to the 5th Circuit. The Clarion-Ledger reports.

Northern Ireland Court Says No Right To Same-Sex Marriage

A trial court judge in the High Court of Northern Ireland yesterday held that the rights of same-sex couples under the European Convention on Human Rights are not infringed by the law of Northern Ireland which allows them only enter civil partnerships rather than full marriage.  As reported by The Independent, the decision comes in two cases heard together.  A press release by the court describes the opinion in one of the cases.  The judge pointed out that the European Court of Human Rights has already held that same-sex marriage is not a right under the Convention.  The judge observed, however:

To the frustration of supporters of same sex marriage the Assembly has not yet passed into law any measure to recognise and introduce same sex marriage. Their frustration is increased by the fact that the Assembly has voted by a majority in favour of same sex marriage, but by reason of special voting arrangements which reflect the troubled past of this State, that majority has not been sufficient to give the vote effect in law.

The Democratic Unionist Party has blocked passage of a law to allow same-sex marriage in Northern Ireland, even though it is recognized in the Irish Republic, England, Scotland and Wales. Law & Religion UK reports on the decision.

Bermuda Court Invalidates Bar On Same-Sex Marriage

In Ferguson v. Attorney General, (Bermuda Sup. Ct., June 6, 2018), a Bermuda trial court held unconstitutional Bermuda's Domestic Partnership Act 2018 that rejects recognition of same-sex marriage.  The Act was passed to reverse an earlier court decision that held existing anti-discrimination laws validated same-sex marriage. (See prior posting.)  In yesterday's decision, the court held that the effect of the Domestic Partnership Act is to limit those desiring recognition of their same-sex relationship to choosing domestic partnerships. It held that while it is not invalid as a law enacted substantially for religious purposes, it is an invalid infringement of  belief:

Prior to the DPA coming into force, same-sex couples who believed in the institution of marriage could manifest their beliefs by participating in legally recognised marriage ceremonies. Just as PMB and its members genuinely believe that same-sex marriages should not be legally recognised, the Applicants and many others equally sincerely hold opposing beliefs. It is not for secular institutions of Government, without constitutionally valid justification, to direct the way in which a citizen manifests their beliefs.

... The Applicants do not seek the right to compel persons of opposing beliefs to celebrate or enter into same-sex-marriages. They merely seek to enforce the rights of those who share their beliefs to freely manifest them in practice. Persons who passionately believe that same-sex marriages should not take place for religious or cultural reasons are entitled to have those beliefs respected and protected by law. But, in return for the law protecting their own beliefs, they cannot require the law to deprive person who believe in same-sex marriage of respect and legal protection for  their opposing beliefs.

 The court also issued a summary of its decision, and Skift reports on the decision.

Analysis of Today's Same-Sex Marriage Decisions-- Installment 2: What About Section 2 of DOMA?

Today's Supreme Court decision in United States v. Windsor invalidated Section 3 of the Defense of Marriage Act which provided that same-sex marriages valid under state laws would not be recognized for purposes of federal law.  The majority in its opinion says nothing about Section 2 of DOMA that provides:

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.

However, can Section 2 escape the majority's broad-brush conclusion that DOMA's "purpose and effect [is] to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity"?  Indeed, it is interesting to note that in most of the passages in which Justice Kennedy attributes discriminatory motivations to Congress, he refers broadly to "DOMA", and not just to Section 3.

Even if Section 2 of DOMA is also unconstitutional, this does not automatically mean that other states must give full faith an credit to same-sex marriages performed elsewhere.  There is a long-standing notion that states need not recognize foreign marriages that violate a strong public policy of the state.  The more difficult question, however, is whether after today's decision, a state's refusal to recognize same-sex marriages from other states can be seen as reflecting a constitutionally permissible strong public policy. Justice Kennedy, in referring to states' interest in defining marriage makes a point of adding that this power is "subject to constitutional guarantees."

To the extent that states are still permitted to refuse to recognize same-sex marriages performed elsewhere, difficult questions arise, particularly when a same-sex couple moves to a state which refuses to recognize their marriage.  As Justice Scalia suggests in dissent:

Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.”... When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules?

Must the federal government continue to respect the marriage valid in the state in which it was performed, even though the state in which the couple now lives refuses to do so? That leads to the "two contradictory marriage regimes" applicable to the same marriage that the Court said it was attempting to avoid by its decision today.

More Messy Procedural Decisions In Arkansas Same-Sex Marriage Litigation

The procedural messiness that has surrounded much of the litigation over same-sex marriage manifested itself again in two recent judicial decisions in Arkansas.  In Henson v. Walther, (AR Cir. Ct., June 9, 2015), an Arkansas trial court judge held that marriages of same-sex couples performed in the state between May 9 and May 16 are valid.  Here is the background:

On May 9, a state trial court held that the state's constitutional ban, and two statutory provisions making same-sex marriages void violate the 14th Amendment's equal protection and due process clauses. However on May 14, the Arkansas Supreme Court pointed out that the trial court had not invalidated a third provision in Arkansas law prohibiting the issuance of marriage licenses to same-sex couples, and had not included language actually enjoining enforcement of the bans on same-sex marriage that it declared unconstitutional.  The trial court responded on May 15 by issuing an order nunc pro tunc granting an injunction and including the omitted third statutory provision. The trial court made it all retroactive to May 9, indicating that this had been the original intent in issuing the May 9 decision. (See prior posting.) On May 16, the Arkansas Supreme Court issued an order staying the trial court's order pending appeal.

The Director of the Arkansas Department of Finance and Administration has refused to recognize the validity of same-sex marriages performed between May 9 and May 16, arguing that the trial court lacked authority to make its May 15 ruling retroactive. He directed same-sex couples married during that period to file separate rather than joint tax returns, and refused to permit same-sex spouses to enroll in the state employee health insurance plan. In Henson the trial court judge disagreed, asserting that the state Finance Director was acting with "shameless disrespect for fundamental fairness and equality." AP reports on the decision.

Meanwhile an appeal of the underlying same-sex marriage challenge has been pending in the Arkansas Supreme Court for over a year-- bogged down in part by an unusual dispute over who are the proper Supreme Court justices to decide the case.  In September 2014, Justice Cliff Hoofman recused himself and the governor appointed Robert W. McCorkindale to serve as special justice in place of Hoofman. The case was briefed and argued before the end of 2014, but the state Supreme Court ended its term without handing down a decision. When the new term began, two new justices had been elected, one of whom was Justice Rhonda Wood who replaced Justice Hoofman.  She insisted she had a right to participate in deciding the appeal.  In Smith v. Wright, (AR Sup. Ct., May 7, 2015), with Jutice Wood and two other justices recusing themselves and replaced by 3 special justices, the Court held that newly-elected Justice Wood, not the holdover special justice, should participate in deciding the appeal.