In Huston last week, a federal judge enjoined the judges of Harris County, Texas from issuing bond orders for misdemeanors. The judge, in a detailed opinion, found that the bond system disproportionately affected the indigent.

The ruling in the civil rights lawsuit came after 8-days of trial and over 300-plus exhibits. Federal judge Lee Rosenthal found that holding accused misdemeanants on a relatively high bond until resolution of the case violated the equal protection and due process provisions of the U. S. Constitution.

One case featured a working mother charged with driving on a suspended license; her bond was set at $2500. When she was unable to make bond, she spent two weeks in jail while her case resolved, at great hardship to her family and children.

Judge Rosenthal found that the Harris County bond system featured "wealth-based discrimination", and violated due process during the pretrial detention phase of a case.  The civil rights lawyers that brought the case presented statistics supporting their contention that 40% of people charged with misdemeanors wound-up sitting in jail the entire time their case remained pending; in some cases, up to a month.

An interesting feature of the case was that nearly all of the evidence presented came from the county clerk's office; court records like the bond orders and the register of actions indicating whether the accused posted the bond.

Although her injunction is temporary, legal scholars believe the ruling will stand. Depending on how far it goes on appeal, the ruling could set a new constitutional standard in criminal procedure regarding pretrial detention for misdemeanors.

Here in Michigan, we have had a movement to eliminate jail as a sanction for misdemeanants that cannot pay court costs and fines. The Texas case is significant because it deals with detention prior to any conviction or other adjudication.

Post #590
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Texas Justice John Devine

If you are like us here at the Law Blogger in our post-Obergefell world, you may be thinking that the battle for marital equality was resolved a bit too swiftly and easily. Well, hold onto your hat because here comes the fall-out.

Disputes over how far the newly-minted marital equality right should go will likely be fought in the equal protection context. A plethora of state and local laws are on the books -or will be passed in the upcoming years- that are designed to limit marital equality.

For example, Justice John Devine of the Texas Supreme Court wrote a strong dissenting opinion last week in an application for leave to appeal, stating that while marriage is a fundamental constitutional right, spousal benefits for [same-sex] married employees are not.

His dissent arose in a case that challenged a City of Houston charter provision that provided for spousal benefits to same-sex couples despite a state law prohibiting such benefits. Apparently, the law has not been wiped-off-the-books yet in Texas despite the SCOTUS Obergefell ruling.

The plaintiffs in the Texas lawsuit sought to enjoin the City of Houston from granting spousal benefits to employees with a same-sex spouse that were married in any state other than Texas. The trial court granted a temporary injunction against the city but the intermediate appellate court reversed on the basis of Obergefell.

While the Texas Supreme Court declined to grant leave for further appeal, Justice Devine had this to say about the appellate judges deciding the case:

Without substantial discussion or analysis, the court of appeals assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.

Justice Devine interprets Obergefell narrowly, opining that so long as a state law does not prohibit a same-sex couple from marrying, it can discriminate against such couples in any number of other ways. According to Justice Devine, laws affecting our fundamental rights receive "strict scrutiny" on appellate review; laws that do not impact a fundamental right are given more deference on review.

The analysis bleeds into the debate about the roles of the various branches of government: making laws, enforcing the laws, and interpreting laws. In this case, the question posed is: whether there is a legitimate state interest in classifying married couples by their gender in the context of government employee benefits.

In his dissenting opinion, Justice Devine points to the legitimate governmental interest in procreation as a basis for upholding the Texas law. He states:

Consider the State’s interest in encouraging procreation. The State may well have believed that offering certain benefits to opposite-sex couples would encourage procreation within marriage. After all, benefits such as health insurance provide financial security as couples decide whether to have a child. An opposite-sex marriage is the only marital relationship where children are raised by their biological parents. In any other relationship, the child must be removed from at least one natural parent, perhaps two, before being adopted by her new parent(s). This does not diminish any child’s inherent dignity, a fact the City presumably recognizes by extending benefits to their employees’ children regardless of the employees’ marital status. But it does explain why the State might choose to direct resources to opposite-sex couples. 

If a rationale-basis review is used -rather than strict scrutiny- then Justice Davis thinks the Texas law prohibiting employment benefits to same-sex spouses passes constitutional muster. Is he following the law handed down by the United States Supreme Court, or his own personal convictions?

Fortunately, the SCOTUS decisions in both Obergefell and Windsor contain robust equal protection components that require states to provide the same benefits to same-sex couples as they do for heterosexual couples.

This type of challenge to the variety of gender-based state and federal laws can be expected to take a quarter century to play out in the courtrooms across the country. In this case, the dissent, written by a justice -a married father of six- who was sued in 2004 for refusing to remove a painting of the Last Supper from his courtroom, expresses a personal conviction; it is not a statement of the law.

As this civil rights struggle continues, we will continue to report on the battles.

Post #556

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By:  Timothy P. Flynn

You need to be an appellate lawyer to follow the recent high-speed developments in the same-sex marriage jurisprudence coming to a rapid boil across the country.  The principal case here in Michigan has had some complicated procedural developments over the past few weeks; we will break it down for you if we can.

As those that follow the news, and this blog well know, U.S. District Court Judge Bernard Friedman issued an opinion and order declaring Michigan's state constitutional ban to be a violation of the Equal Protection clause of the United States Constitution.

In conjunction with Governor Snyder, Michigan's Attorney General has aggressively pursued the state's appellate options in the DeBoer same-sex marriage and adoption case.  Since losing the case at trial, Attorney General Bill Schuette has done what any state actor appellate attorney would do: a) seek a stay of the trial court's ruling pending a resolution of the inevitable appeal, and b) expedite this inevitable appeals process by requesting what is inconveniently referred to as an "en banc" appeal.

These filings by the Michigan Attorney General make a lot of sense.  And the United States Court of Appeals for the Sixth Circuit seems willing to play along.

First, consider that the Sixth Circuit immediately granted the AG's motion for an emergency stay, so Judge Friedman's ruling is held in abeyance for the time being; no more legal gay marriage licenses can be issued in Michigan.

Second, we here at the Law Blogger happen to think that AG Schuette's latest motion for en banc review makes a lot of procedural sense.  Generally, when a litigant loses a trial, our system of justice provides for a second look; the trial judge is not the final word in any given case.

When a losing litigant becomes an appellant, the case is assigned, in both state and federal courts, to a 3-judge panel to decide the matter via majority vote.  The party that loses an appeal has the option to inveigh the entire appellate court; an en banc appeal.  In the case of the Sixth Circuit, that includes 23 judges.

Most appellate litigants that apply for en banc consideration are rejected.  Rather than suffer this procedural rejection, many appellate litigants elect to push on the the High Court; the United States Supreme Court.

Not so with the DeBoer case; a case that has profound constitutional significance and that has become a symbol of the civil rights struggle of our time.  Attorney General Schuette is correct to seek en banc review rather than intermediate appellate review from a 3-judge panel; why waste the time and resources.

There is no doubt that this case, along with select others from across the nation, will be ultimately decided by the SCOTUS, as in the United States v Windsor decision.  Like the abortion issue that preceded it, the same-sex marriage issue will be a deep and rich jurisprudence that will flesh-out over time.

Cutting to the chase, as the Michigan Attorney General wants to do, makes a whole lot of sense.

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Judge Bernard Friedman
Sorting through the experts

This morning, closing arguments are scheduled in the same-sex marriage trial over which U.S. District Judge Bernard Friedman has presided the past two weeks.  Judge Friedman, having denied cross motions for summary judgment in the case, gets to decide the constitutionality of two Michigan statutes: the ban on same-sex marriage [approved by a 57% voter initiative in 2004], and the prohibition of gay adoptions.


The trial began with the testimony of Oakland County Clerk Lisa Brown; she indicated that she is prepared to "follow the law"
which, depending on how Judge Friedman rules, may include issuing marriage licenses to same-sex couples.  [Note: the Law Blogger has been tracking this issue in other states like New Mexico where county clerks have been issuing such marriage licenses on the heels of post-Windsor federal court rulings striking state law bans on gay marriage.]

Brown, also a defendant in the case, has made her personal views known: she believes that gay couples are denied marriage licenses unfairly.  She testified about a state-wide memo issued by the Michigan Attorney General last fall to Michigan's 82 county clerks instructing them not to issues such licenses, regardless of how Judge Friedman decided the DeBoer case.

Other than the one county clerk, the trial has consisted of a parade of expert witnesses.  Select sociologists, professors and legal experts all had their moments to shine during the trial.  While this has been a quick trial, we here at the Law Blogger wonder whether these experts have aided the trier of fact in deciding the case, or whether they have polluted Judge Friedman's courtroom with junk science.

For their part, experts for the gay parents have attempted to blackboard data in support of their equal protection claim that children raised by gay parents have measurable outcomes on a par with traditional parents.  The Plaintiffs' experts have also drawn parallels with interracial families, concluding that Michigan should join what these experts depict as a strong trend toward social acceptance of gay marriages.

Experts for the state, on the other hand, painted a consensus that no reliable sociological data yet exists to support the Plaintiff's case; they also contend that traditional families, with a Mom and Dad, have the best child outcomes, citing to statistical reports they say support this conclusion.

Finding his testimony would, "add nothing to the case", Judge Friedman disqualified the state's first expert, Catholic philosopher and author Sherif Gergis.   Then there was the state's final expert, Canadian economist Douglas Allen; he testified, unequivocally, that unrepentant gay couples faced eternal damnation.

Is Judge Friedman now better informed?  Or does he have to digest a full-plate of junk science, with religious seasoning?

Soon, we'll all know whether Michigan's anti-gay statutes will pass constitutional muster; at least at the initial trial stage.  Then its on to the appeals, where the DeBoer case will be consolidated with other similar cases percolating through the Sixth Circuit here in Michigan, and in Ohio, Kentucky and Tennessee.

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The family at the heart of the case.

To be sure, there will be a "battle of the experts" in Downtown Detroit this week and next at the Theodore Levin federal courthouse.  Today is the commencement of the trial ordered by U.S. District Judge Bernard Friedman between the lesbian couple seeking to overturn Michigan's adoption and same-sex marriage laws on equal protection grounds, and Michigan's Governor and Attorney General who seek to enforce our state law ban on such arrangements.

Of course there is much publicity surrounding the case today on the Internet; and for a very good reason.  This case stands out among all the same-sex cases percolating across our nation for the reason that Judge Friedman declined to grant either side's dispositive motions back in October, electing to evaluate evidence in the case during a scheduled two-week trial.

Now, bring on the experts.  Both sides claim to be able to support their case with "scientific" evidence.

For their part, the lesbian couple -April DeBoer and Jayne Rowse- plan to capitalize on expert testimony from new studies that conclude children raised by same-sex couples have just as much promise and opportunity as children raised by traditional parents.  Their lawyer told the Freep yesterday:

We have sociologists, child growth experts, and psychologists (who) uniformly agree that child outcomes for children raised by gays and lesbians is just as promising as those kids raised by heterosexuals.

 The State of Michigan's legal team has its own arsenal of experts to provide testimony in this case.  In addition, it has been beating the drum that Judge Friedman, sitting in federal court, should not be making this decision because the voters of Michigan decided the issue via voter initiative back in 2004.

Judge Friedman had the opportunity to make a legal ruling on the merits of the respective positions last October, but ordered a trial instead.  We here at the Law Blogger now wonder whether this trial will be an exposition of modern child development theory, or a parade of junk science.  Stay tuned to be enlightened on these issues.

Whatever Judge Friedman decides, he will be appealed to the Sixth Circuit Court of Appeals in Cincinnati sometime later this year; the case could be headed to the SCOTUS.

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Increasingly, same-sex marriage cases erupting across the nation are finding their way into federal court.  In the post United States v Windsor marriage jurisprudence, couples are challenging state constitutional bans on gay marriage by leaps and bounds.

Christmas Eve saw two important cases pending in federal courts in Utah and Ohio continue the momentum toward recognition of same-sex marriages.

The latest state to test these waters is Utah where three same-sex couples filed suit in federal court against the Governor and the Attorney General challenging Utah's state law ban against gay marriage.  The federal court judge assigned to the case recently ruled that the Utah marriage law violated the couples' due process rights and their equal protection under the law.

Utah's AG immediately filed an emergency appeal in the 10th Circuit Court of Appeals to stay the federal judge's order while his appeal is pending.  The AG's motion to stay was denied in a concise 2-page order issued by the 10th Circuit on Christmas Eve.

Without a stay in place, the floodgates were opened and exploited by couples awaiting recognition of their marital status: 300 couples were married in Salt Lake County alone.

Meanwhile, in Ohio, the federal court judge presiding over the death certificate challenge, the subject of an earlier blog post, ruled that valid out-of-state same sex marriages must be reflected on Ohio death certificates.

This momentum will undoubtedly continue as the Windsor decision takes root.  As this post is being written, our blog roll is lighting-up with decisions arising out of cases in New Mexico, Indiana and Oklahoma.  Stay tuned as we try to stay abreast of significant developments.

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As summer concludes and the federal bureaucracy returns to their Washington offices, the fall-out from SCOTUS' United States v Windsor decision continues.  The latest example of bright-line policy declarations comes from Eric Holder, the U.S. Attorney General, regarding veterans benefits for same-sex couples.

In his letter last week to House Speaker John Boehner, the AG instructs Congress that the Executive Branch will no longer be enforcing various sections of federal law dealing with benefits to veterans and their spouses.  To the extent that the targeted portions of the statute mirrored definitions of a married couple as defined in the Defense of Marriage Act, they are stricken.

The effect of this new policy is to open up the availability of federal benefits to same-sex spouses of service members, both active duty and reserves.  Citing the Fifth Amendment's equal protection clause, as well as a recent federal judge's decision that the targeted provisions of the federal veterans benefits statute were unconstitutional on 5th Amendment equal protection grounds, Holder advised Congress that enforcement of these provisions were no longer appropriate.  In doing so, he also remarked that instances where the Executive Branch cannot enforce federal law are, "appropriately rare."

All of these policy pronouncements coming out of Washington over the past few months points to the massive task of re-writing a significant portion of the United States Code in light of the demise of DOMA, and in favor of valid same-sex marriages.  We here at the Law Blogger, while recognizing the significant gains this civil rights struggle has made, have to wonder how well-accepted these new federal laws and regulations will be across the board and throughout the country.

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Here come the lawsuits.  In the wake of the SCOTUS ruling in June striking down same-sex marriage bans and granting federal benefits to same-sex married couples, many couples are finding their way to court houses across the country.

Most states that have what could be called "gay-friendly" legislatures, something that we would expect changes over time, have already passed laws specifically granting gay couples the right to marry in a dozen states.  So the strategy among proponents of the notion of gay marriage has shifted from the state capitols to the county courthouses.

In Santa Fe County, NM, for example, a family court judge ordered the county clerk's office to issue marriage licenses to couples without regard to their gender or sexual orientation, ruling within a brief hearing that doing so was now unconstitutional.  At the time of this blog post, 7 counties in New Mexico have followed suit.

In neighboring Texas, the Supreme Court has scheduled oral arguments for November in two cases where same-sex married couples were granted divorces from Texas county family courts.  The Texas Attorney General has intervened in the divorce proceedings, asserting the divorces issued by the family courts are invalid because they implicitly recognize same-sex marriage; something proscribed by Texas law.

Cases in Tennessee and Kentucky are also percolating through the state courts, testing state laws proscribing same-sex marriage.  In one of the several cases pending in Kentucky, one-half of a same-sex married couple is on trial for murder and the issue in the court is whether his "better-half" can be compelled to testify, or whether he should be granted spousal immunity.

In another high-profile case from Franklin County, Kentucky, a same-sex couple filed suit against the Governor on grounds that Kentucky's outright constitutional ban of same-sex marriages violates the Equal Protection clauses of the U.S. and Kentucky constitutions.  This is the same issue that was decided in California in the SCOTUS Windsor case.

Currently, there are too many same-sex marriage cases to track unless you are a law professor or law student writing a law review article on the subject.  Unlike the SCOTUS' 1973 Roe v Wade decision, considered the height of judicial activism, which created a sweeping constitutional ban on anti-abortion legislation, last term's same-sex marriage decision adopted a state-by-state approach.

While the momentum toward recognition of same-sex marriage as a civil right has gained steam since we here at the Law Blogger picked-up on the issue back in 2009, it will take at least a quarter century for the current dust to settle.  At least that is our prediction.

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