Demonstrating that the Supreme Court may rule but may not always command, the process of making same-sex marriage available nationwide is still unfolding, some six weeks after the Justices decided in its favor. Political resistance is developing in many places, but the legal process is moving ahead — state by state — to make same-sex marriage a reality.
Although there is as yet no sign of active defiance by officials in states where such marriages remained banned — that is, as of June 26, when the Court decided Obergefell v. Hodges — officials in a number of states are resisting the final legal steps to implement that decision.
In one of the first definitive rulings in response to those challenges, a federal judge in Topeka, Kansas, on Monday issued a compromise ruling, declaring that state’s ban to be unconstitutional, but refusing to issue now a binding order stopping its enforcement.
U.S. District Judge Daniel D. Crabtree said he needed more information on whether Kansas officials are — as their lawyers had told him they were — actually allowing same-sex couples to get married and to begin receiving all the benefits that go with marriage. He will hold off on any permanent order to comply until he gets further data, the judge said.
In a forty-two-page opinion that resolved a host of lingering questions that were quite typical of what officials have been raising in state after state, the Topeka jurist clearly showed that not everything was settled when the Supreme Court ruled that a state violates the Fourteenth Amendment when it refuses to allow same-sex couples to marry or refuses to recognize such marriages performed in other states.
Meanwhile, in another development that is spreading among the states, official state agencies that monitor judges’ ethics have been providing guidance to judges who normally perform marriages that they cannot refuse, for religious reasons, to do so for same-sex couples. Typical of the guidance so far was a seven-page, non-binding opinion issued last Friday by the Board of Professional Conduct in Ohio, an arm of that state’s Supreme Court.
Noting that similar boards in four other states had already done so, the Ohio agency said that judges cannot ethically refuse to perform same-sex marriages while marrying other couples, and that they risk charges of bias or prejudice if they stopped doing all marriages to avoid marrying gays and lesbians. A judge’s oath, it said, requires the judge to give up acting “on any basis other than the fair and impartial and competent application of the law.”
In the federal courts, as in the Kansas situation, judges basically are being asked by same-sex couples to issue permanent orders directing state officials to obey the Obergefell decision, and by state officials to end the couples’ cases without such orders, relying on several reasons — including that there remains no live controversy and that the court has lost jurisdiction to go further.
In Judge Crabtree’s ruling on Monday, he wound up giving same-sex couples a symbolic victory by formally declaring the Kansas ban unconstitutional, and giving the state more time to convince him that there is no need for a permanent injunction to ensure that the right to marry and to have its benefits will actually be open equally to same-sex couples in Kansas.
He remarked that the state’s lawyers so far had ‘made “a deliberate — though perhaps incomplete — effort to comply with Obergefell.” He concluded that “the prudent course” for him would be to let state officials “finish updating their policies and practices to conform to Obergefell‘s new rule of constitutional law.”
He told both sides to come back, by September 15, with updated facts (he said he needs no more legal arguments) on the actual situation across the state. Should later developments show that his “hopefulness about Kansas officials’ pledge to comply with Obergefell is misplaced,” the couples will be allowed to renew their plea for a permanent enforcement injunction, he said.
His hesitation about issuing such a formal order right now, the judge stressed, was based upon “principles of federalism and comity” that “counsel a federal court to proceed cautiously when asked to enjoin the operation of a state government.”
Along the way toward the decision he was prepared to make at this point, Judge Crabtree rejected the following arguments made by the state’s lawyers:
** That the couples’ case is “moot” — that is, that the controversy has ended — as a result of the Obergefell decision. (Once a case becomes “moot,” a federal court’s power is at end, under the Constitution’s Article III.)
** That the case also is moot because officials have begun voluntarily to comply with the Supreme Court decision.
** That the steps state agencies have taken so far to allow couples to marry, to get driver’s licenses in their married names, to file joint marital tax returns, and to extend state health benefits to state employees’ new spouses are sufficient to show that the state will continue to comply in the future.
** That the Obergefell decision itself gave the Kansas couples the only formal declaration of law that they need to establish their rights to marry and to marital benefits.
** That the state and its officials have “sovereign immunity” under the Eleventh Amendment from claims that they will now have to spend state funds to provide state health benefits to the new same-sex spouses of state employees.
“” That the couples sued the wrong state officials, because those sued actually lack the power to remedy the violation of the couples’ new marriage rights.
** That a federal law that denies federal courts power to prevent states from collecting taxes under state law applies to the couples’ claim to file joint marital tax returns, because a right to file joint returns is a tax law, not a regulatory measure.
In responding to the state officials’ overall attempts to show that they have done enough to justify ending the case, Judge Crabtree said the facts developed in the case up to this point gave him “concern” and raised “questions about the efficacy” of the commitments state lawyers offered to him about remedying the violation of the couples’ rights.
One of the main reasons for his concern, he noted, is that most of the steps state officials had previously taken to open marriage to same-sex couples actually had come in response to an earlier lower court order — before the Supreme Court had decided Obergefell — and were temporary, and so did not guarantee compliance with that ruling when and after it emerged.
At the opening of his opinion, the Kansas jurist said that, given what the Justices had now decided, “one might ask whether there is any work left to do in this lawsuit.” He noted that the couples and the state “disagree sharply about the right answer to this question.”
He then proceeded to answer it, saying that he had the task of deciding a variety of issues based upon “a set of legal principles that originate in the Constitution’s limits on federal judicial power” and based upon a duty to “honor the delicate role that federal courts play in a dual-sovereign system of government.”
In the part of his order about what happens next on a potential enforcement order, he set a September 15 deadline for initial filings of new facts by both sides regarding actual access to marriage and its benefits, and then gave each side twenty-one days after that to respond to each other’s filings.
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