Friday, November 7, 2014

Today In Wyoming's History: Judge Skavdahl rules on same gender marriage case....

A few days ago I wrote a post here about the history of marriage. Last Friday, one of the three Federal judges in Wyoming struck down Wyoming's statute on marriage, which I've written about here:

Today In Wyoming's History: Judge Skavdahl rules on same gender marriage case....:

I haven't actually read Judge Skavdahl's decision, so my commenting on some aspects of it may be bad form, but I'm going to do so anyway.  One of the things I've often struck by in legal matters is how people and the press often fail to understand what a ruling actually does, or may do, and that even lawyers fail to understand how the law of unintended consequences tends to apply to big legal decisions and even the amendments of laws. For example, it's probable that the original proponents of no fault divorce never guessed that it would help usher in an age when many people would live in the same circumstances that previously would have been regarded as a common law marriage, but with no recognized marriage at all.

Anyhow, amongst the interesting questions is this. Does Judge Skavdahl's ruling operate the way he probably intended it to operate, or is the door now open to just argue that henceforth marriages in the state can't occur until a new law is drafted?  The existing law starts off reading as follows:
20-1-101. Marriage a civil contract.

Marriage
is a civil contract between a male and a female person to which the consent of the
parties capable of contracting is essential.
If that's what a marriage in Wyoming will be until Thursday, when Judge Skavdahl's ruling takes effect, can it now be argued that the definition of marriage fails under his ruling, and they just won't be at all?

It's an interesting question, but it's one that nobody is actually asking. And nobody will unless somebody tries to argue that in court, which would be unlikely.  Generally, nobody has an obvious interest in arguing that, which doesn't mean that it won't occur.  Probably if it were to occur, the Court would just "fix" the ruling to fit the desired goal.

That's basically what's happened in the overall context of the same gender marriage issue.  No matter what side of the issue a person is on, it's really basically an example of judicial legislation, although people aren't arguing that.  For those who take an original intent approach to Constitutional interpretation, the fact is that under the Natural Law marriages were always regarded as strictly male/female.  I know that people like to cite some odd examples, but they are extremely rare and usually rapidly break down under analysis. At the time the Constitution was written, the drafters were all familiar only with marriage as it then existed, and same gender unions would not only have been regarded as impossible, but illegal.  So any originalist interpretation of the Constitution would have to take that view into mind.  A person might still be able to reach the same results, by citing changes in other states and the Equal Protection provisions of the 14th Amendment, and that might be what the Court has done here, but that's a different position that what people conceive as having occurred.

Okay, on unintended consequences, it's almost certain that the one I noted above will not occur, but there are a host that I suspect will, and it will be interesting to see how they develop.

One that I'm almost certain will now occur is that "poly" marriages, i.e., more than one man or woman in a union will become inevitable.  I just don't really see how the courts can't find them constitutional under the same set of rationales that were used here.  At least one Federal Court has already issued that ruling, but then held its decision in abeyance.  This may seem far fetched overall, but only to people who don't live in the West where there are religious groups, presently small in number, that already espouse this view and always have.  So I think that's a given.

One unexpected probable result, however, is that in really thinking about the issue in a civil context, I suspect that the actual impact of the decision only effects something in actual legal terms to a very, very small degree, and ironically, in a way that the proponents of the change probably wouldn't fully want.  The real impact, in so far as I can tell, is mostly just on the division of property in a divorce.

The reason for this is that the civil law impact of marriage has been reduced pretty much to the provision of naturally born children (although even here it is greatly diminished) and property.  These features of marriage as a civil institution have always been part of the reason that it is a civil institution.  At first blush, a person might think that well of course, now those apply here, but that might not be fully correct.

It's incorrect, to be sure, as the "natural born" children part of it doesn't occur with same gender couples.  Yes, they can adopt and they can use surrogates, but they could before and the legal relationships that causes are already controlled by the law. So there's no changed there.

There is, however, in regards to property acquired during a marriage as opposed to a couple simply living together outside of marriage. Generally, the law doesn't control the distribution of property by break ups or death of couples that aren't married but living together, save for circumstances in which they'd contracted in some fashion to address that or there's a dispute about who owns what, which is fairly rare.  Now the law of marriage will apply.

That probably will have relatively low impact in testamentary proceedings, but it will now definitely bring in the law of divorce.  So an irony now exists in that one of the first impacts of a law changing the definition of marriage also expands out just a bit who is subject to the law of divorce.

Another area it will definitely impact is the area of insurance and benefits where a general "spousal" benefit exists, although that impact will be smaller than supposed because in the case of governmental employees it seemed to be expanding towards a "partner" definition in general.  It'll also impact the couples tax structure, although again a person has to wonder at which point a "partner" definition is brought into that, or at what point single people complain that tax benefits to the married no longer serve their original purpose and are themselves unconstitutional.  I think that effort would fail, but a person could at least argue that.  Probably not very successfully, however.

Another irony of this is that it takes this issue away as one that existed, to the extent it did, in the current Governor's race. Governor Mead is almost certain to win reelection, but he was getting asked about this a fair amount by the press.  At least the local Casper Star Tribune was clear in its view that the state should change the definition of marriage, and as the Tribune is present at every debate, this was going to come up every single time.  Mead, to his credit, was clear that he based his views both on his philosophical  position and his his religious views.  Not every candidate would be willing to admit this his religious views (Mead is an Episcopalian) had a role in it.  And citing to conservative Episcopal views in a state where the Episcopal church has really declined in numbers, and where that church has been in turmoils over this issue amongst others,is a pretty frank and bold position to take.  Now, however, this is removed as an issue for him, and should he decide to run for this or any other office in the future, he can take credit for his views but not have to live with the matter, maybe, as a continuing controversy. That all presumes, of course, that the Supreme Court doesn't enter into this debate soon, which is not a safe assumption at all.

If Mead is off the controversy hook here a bit, a group that may not be are people with strong religious convictions on this issue who hold public office in some fashion.  This is an issue that has been little explored, but this ruling might spark a crisis of conscious in some of these people, or perhaps might not, I honestly don't know. What is the case now is that we will have a situation in which County Clerks and Circuit Court Judges will be asked to issue marriage licenses and perform civil marriages and some of the people in those office, and perhaps more importantly some future potential office holders, may now have to reassess their ability to hold these offices, I'm just not sure. At least Catholics, Orthodox Christians, Muslims, Mormons  and Orthodox Jews hold religious views that regard some unions as immoral.  At the current time Catholics and Mormons are a significant portion of the state's demographics and also a significant portion of the legal community, with representatives on the bench as well.  Greek Orthodox Christians are a significant demographic in some, but not all, Wyoming towns and likewise are fairly well represented in the legal community, although the only Greek Orthodox judge, a District Court judge, retired some years ago.  Muslims are a very small demographic in the state at the present time (as opposed the Catholic and Mormon demographic which are growing), although they're interestingly well represented in the medical community.  Orthodox Jews, however, are nearly completely absent from the state.  How this shakes out I do not know, and it should be noted that none of these demographics has so far found it morally objectionable to issue marriage licenses in the case of divorce, which some also have moral objections to, so perhaps its a non issue.  It comes to mind, however, as a County Clerk in an eastern state just resigned from that office last week, feeling morally obligated to do so, so perhaps this issue might exist.  If it does, this will actually be a real problem as demographics that are very well represented in the state should not be excluded from holding office, and if they do this will operate as  type of prejudice that will have real, although as yet unknown, negative consequences.

On other things about the decision, while I'm not in the habit of criticizing Federal judges, I do think that Judge Skavdahl was very unwise issuing his decision so rapidly as the rapid release inevitably discredits it.  Those who are familiar with this process know that whenever a judge released a decision that quickly, he basically had his mind made up going into the hearing.  Generally, that doesn't bother lawyers, but it does bother the members of the public in matters of significance.  That should have been on his mind as the general history of public respect for Federal decisions on decisive issues is that the public doesn't respect them.  The Federal courts already have pretty low credit in Wyoming, as they're constantly overruling the state on matters of importance to the state, although that's usually the D. C. Circuit.  But beyond that, big socially divisive issues, while the Federal Court has jurisdiction over many of them, generally do not sit well with those on the loosing side if they are judge made.  The case of Roe v. Wade is the classic example, as its never been accepted by a large portion of the American public and this line of decisions is unlikely to with those who disagree with them either.  It's probably partially for that reason that the U.S. Supreme Court chose not to take it up right away.  People on both the left and the right are constantly complaining of "judge made law", and here in this area the change in the definition of marriage is becoming increasingly judge made.  When so many people feel alienated from the courts and disrespect them rushing to a judgment was foolish.

It was also frankly foolish to take the matter up on an expedited basis.  The better course would have been to take it up when it came up in the natural progression of the case and then rule on it. That does involve a lot of delay due to the naturally slow progression of a case, in the eyes of the public, but it doesn't look that way like the judge made his mind up immediately and forced a rapid decision, which is how this otherwise will look to many. Additionally, there was no real harm in delay in the legal sense, as changing the definition of something that's been read one way for centuries can't rationally create an emergency situation.  Of course, the argument would be that the 10th Circuit's decision created that emergency, but that too would have been a reason to go slow, as if the court had, chances were good that the 10th itself would have taken this matter up or perhaps the U.S. Supreme Court, and the local Federal court would never had to have done so, maybe.  Now it has, and some are celebrating, others are upset, and yet others will note that the same judge recently made a ruling on the Federal health care act here that didn't sit really well with everyone.  Sometimes proceeding slowly is a better approach to take.

Postscript

A couple of additional comments, as this story moves along.

The impact of the ruling came a couple of days early, as the Attorney General determined not to appeal. Given the recent 10th Circuit Court of Appeals decisions that Judge Skavdahl relied upon, the Attorney General was correct.  No point in doing a doomed appeal.  It wouldn't even serve to try to get these issues to the U.S. Supreme Court, for those who hope to do that, as the existing opinions already  stand and that did not occur.

However, the Federal District Court in Peurto Rico issues an opinion going the opposite directly that was scathing in its view of the recent decision such as the 10th Circuits.  Whatever a person may think of this issue one way or another, that decision is undoubtedly the most legally correct.  Whether it will stand or not is yet to be known, as presumably the loosing parties will appeal to the 1st Circuit Court of Appeals. For those hoping in a split in the circuits, this might be it, or it might actually present another basis for a Petition for a Writ of Certiorari, as its so clear in its views.

On another matter, here in this county we saw the spectacle of a non denominational woman cleric loitering around the courthouse all day hoping to find some same gender couples to marry, and finding one.  There's something unseemly about that.  Presumably any same gender couples that determined to marry weren't really looking into just bumping into a person commissioned to do it casually, which another female cleric who was supporting this movement noted in an interview yesterday.

Postscript

The other day I was looking at some old statutes, and in doing that I was curious as to how this set of laws originally read.  I couldn't find the absolutely oldest variant, but here's one that dates to the 1890s:


As we can see, the original text defined marriage similarly, but omitted the "between men and women" language.  Not that this is surprising, as marriage would have been conceived of in no other way at the time.

The language that follows is sort of interesting, and clearly is cast in terms of male and female.  It's odd that males could marry only upon reaching 18, but females needed to only have reached the age of 16.  Minors could marry, however, with the consent of apparently one parent, with the father given the veto power on that if he was alive.

Postscript II

What my personal prediction on this was has come true.

A lot of judicial decisions on any one big social issue have a certain "me too" quality to them, which shouldn't be the case but which does tend to be. That is, no one Federal judge wants to seem to be the last man left on the boat when a social issue seems to be going one way in the courts.

But some don't seem to be influenced by that, and some will stick with a reading of the law as it exists, rather than jumping on a trend. That's happened twice now since the Wyoming decision.

The first time happened with a Federal District Judge issued an opinion in Puerto Rico, which of course has Federal Courts. That opinion was pretty scathing towards other Federal decisions, and noted that Supreme Court precedence doesn't really allow for the district courts to overturn the law in this area. Really, the Federal Courts have been acting in contravention to precedence.

Now the Sixth Circuit Court of Appeals has done the same thing. 

This was inevitable.  Sooner or later, and more likely later as has happened rather than sooner (although quicker than I supposed) a Federal Court was actually going to apply the law accordingly to existing case law, which is what they are supposed to do.  The Court noted that social concerns were not supposed to be part of its opinion at all:

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question:  Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?
This means that this will now go to the Supreme Court, probably in the next term.  It nearly has to, now that there's a split in the circuits.  My guess is that the Court will hold as the 6th Circuit has, that there's no Constitutional basis for changing the definition of marriage that has always existed as being a male/female union.  The Court's decision will be in part based upon its prior decision in Baker but also on the fact that the Court is well aware that big Federal decisions on social issues discredit the court and become societal disasters, and moreover they open up the door to endless successor cases as the boundaries of the change in the law are tested.  That would undoubtedly be the case here, should the Court go the other way.

One of the things here that has concerned me about this decisions going on the other way is that its my feeling that judicial decisions on social issues are very rarely accepted by the populace, and that people who rely on them under the theory that it means they've achieved some real victory fail nearly completely to understand that achieving a legal victory does not equate with actually winning an argument in the larger society.  Moreover, in a matter like this, in which people are relying on the decisions of judges in opinions that are pretty poorly based, they're really risking them being upheld.  Here, they are unlikely to be, and the law as it is actually written will blast back into existence literally with the stroke of a pen.  It's highly probable that same gender couples that believe they are married in the states with laws that don't recognize those marriage, but which are being conducted under the fiat of judicial authority, will find that they were never married in the first place.

That will undoubtedly result in a lot of protest and decrying of the Court, but the irony of it is pretty thick.  Having failed to really achieve what they wanted in most places through the legislatures, and having grown impatient with that process, they resorted to the Courts, which by their nature are, at the end of the day, non democratic. The Vox Populi is not supposed to be heard in court.  And not only is it not supposed to be heard, it tends to shut it up.  In a divisive issue, the group that gets shut upped tends to grow in strength if its view is widely shared, as there's the sense that a few jurists are substituting their personal views for that of the electorate.  People who had no prior strong feelings on an issue will develop one at that time as Americans really don't have that much respect for the judiciary really.  It was for that reason that the liberal The New Republic opined years ago that Roe v. Wade should be opposed by Liberals.  Here, in a year or so, the 6th Circuit opinion is likely to be upheld and the law of the states which found their law suspended by their Federal Courts will be restored, and this debate will return to the legislatures, but with positions very much hardened.

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