U.S. Eighth Circuit - The FindLaw 8th Circuit Court of Appeals Opinion Summaries Blog

Fed. Judge Joins State Judges, Strikes Missouri Gay Marriage Ban

And the Feds weigh in!

Two days ago, a state court judge held that Missouri's ban on gay marriages performed in the state was unconstitutional. A month before that, a second state judge held that the state's refusal to recognize out-of-state marriages was unconstitutional. Meanwhile, we were wondering what was happening with the federal case.

The opinion was being proofread, apparently. Today, Judge Ortrie D. Smith of the U.S. District Court for the Western District of Missouri invalidated that state's law banning same-sex marriage, saying, quite interestingly, that it amounted to gender-based discrimination.

Not Windsor, Nor Baker, Nor Bruning

As was expected, both sides cited Windsor in support of their arguments. Judge Smith was unconvinced, stating that Windsor "does not aid either of them."

"Windsor did not purport to establish what kinds of marriages states are obligated to regard as proper," Judge Smith wrote. "It simply accepted the existence of a marriage deemed lawful by the State of New York and held the federal government could not deem that marriage a nullity."

As for Baker, Judge Smith discussed the history of the one-line summary disposition. We won't bore you with the details. Suffice it to say, one-line means little when it was never cited again, despite many opportunities (Lawrence, Romer, etc.) to do so.

The big obstacle, in the Eighth Circuit at least, is Citizens for Equal Protection v. Bruning, a 2006 case where the Eighth Circuit upheld Nebraska's gay marriage ban. Instead of labeling it as irrelevant pre-Windsor precedent and ignoring it, Judge Smith noted that the case didn't address the right to same-sex marriage -- it was a political access case. From Bruning:

Appellees do not assert a right to marriage or same-sex unions. Rather, they seek a level playing field, an equal opportunity to convince the people's elected representatives that same-sex relationships deserve legal protection. The argument turns on the fact that Section 29 is an amendment to the Nebraska Constitution. Unlike state-wide legislation restricting marriage to a man and a woman, a constitutional amendment deprives gays and lesbians of "equal footing in the political arena" because state and local government officials now lack the power to address issues of importance to this minority.

He did note that Bruning holds explicitly that sexual orientation is not a suspect class, and due to that precedent, he had to dismiss plaintiffs' orientation-based equal protection arguments.

Due Process

Citing Loving v. Virginia and others, Judge Smith held that there is a fundamental due process right to marriage, one that is protected by strict scrutiny. Strict, intermediate, or rational review, wouldn't matter, however, since the court found that the "interest in promoting consistency, uniformity and predictability" would not even satisfy the lowest level of scrutiny.

Gender-Based Discrimination

Judge Smith has a really accessible writing style. So, for those of you who haven't been following what this whole gay marriage debate is about, here is his recap:

The restriction on same-sex marriage is a classification based on gender. The State's "permission to marry" depends on the gender of the would-be participants. The State would permit Jack and Jill to be married but not Jack and John. Why? Because in the latter example, the person Jack wishes to marry is male. The State's permission to marry depends on the genders of the participants, so the restriction is a gender-based classification.

Either he's making this so simple that even my people can understand, or he's just mocking the absurdity of the state's argument by breaking down the problem into the simplest terms possible. He goes on to cite United States v. Virginia to hold that intermediate scrutiny applies before tearing apart whatever remained of the state's case:

The State has not carried its burden. Its sole justification for the restriction is the need to create rules that are predictable, consistent, and can be uniformly applied. Assuming this is a valid justification for a restriction, there is no suggestion as to why the gender-based classification is substantially related to that objective. A rule that ignores gender would be just as related to that objective and be just as easy to apply (and arguably would impose less of a burden on the Recorders of Deeds because they would not have to conduct any gender-based inquiry whatsoever). Regardless, administrative convenience is not a valid reason to differentiate between men and women.

#ShowMeMarriage y'all. Next up: Appeals in either the state cases (to the Missouri Supreme Court) or to the Eighth Circuit (one of the few that hasn't addressed the issue of gay marriage). The latter would have a far greater impact: Missouri, Arkansas, Nebraska, North Dakota and South Dakota are all in-circuit states with gay marriage bans.

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