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Intriguing issues impact state after same-sex case

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The decision by the U.S. Supreme Court near the end of its 2014-15 term three weeks ago legalizing same-sex marriages throughout the country is of particular interest in Minnesota.

This state spawned the progenitor marriage equality litigation 45 years ago, when first the Hennepin County District Court and then the Minnesota Supreme Court rebuffed a same-sex marriage request by two gay men in Minneapolis, a decision that the U.S. Supreme Court dismissed, on the merits, because it did not present a “substantial” federal question.Baker v.Nelson, 191 N.W.2d 185 (Minn. 1971) dismissed 409 U.S. 810 (1972). The rejection by the Minnesota electorate in 2012 of a state constitutional amendment to bar same sex-marriages in 2012, the first defeat at the polls for a same-sex marriage ban, followed by the enactment of legislation a year later allowing such unions, helped fuel the movement that ultimately culminated in the landmark Supreme Court decision late last month in Obergefell v. Hodges, 516 U.S., No. 14-556, (June 26, 2015).

With the reverberations from the case still resonating, it behooves those in Minnesota, which holds a special place in the law and lore of marriage equality, to consider some of the intriguing issues left unresolved byObergefell and their potential impact in this state.

Liberty law

The court’s majority opinion, authored by proverbial “swing” Justice Anthony Kennedy, focused on the 14th Amendment issues asserted by the same sex claimants, that barring them from marrying violates the Due Process and Equal Protection clauses of that provision. The outcome chiefly turned on the Due Process clause, with Justice Kennedy, writing for himself and the four liberal members of the Court, saying that barring same sex-marriage constitutes a deprivation of the “liberty” interest of individuals in exercising their “fundamental right to marry.”

This determination represents a rare exercise by the high court of substantive Due Process, recognizing a specific constitutional protection or right not expressly stated in the text, E.g. Skinner v. Oklahoma, 316 U.S. 535 (1942) (forced sterilization); Griswold v. Connecticut, 381 U.S. 479 (1965) (contraceptives for married couples), compared to the usual Due Process claim that turn on procedural issues regarding how rights are granted or denied. E.g. Goldberg v.Kelly397 U.S. 254 (1970) (hearing before deprivation of welfare benefits); Board of Regents v.Roth, 408 U.S. 564 (1972) (pre-termination of employment hearing). The ruling could usher in a new era of more substantive Due Process claims, characterized by assertions that particular claims heretofore not recognized, are entitled to some form of constitutional protection, such as education, Vergara v. California, Case No. BC484642 (Los Angeles County, Cal. June 10, 2014) (teacher tenure violates state constitution); health care; and perhaps others. There are no cases on the immediate horizon raising these issues, but the substantive Due Process framework of the Obergefell case may provide fodder for the future.

The Equal Protection argument, one that Chief Justice John Roberts, who ultimately was a dissenter, underscored at oral argument, was given short shrift in Justice Kennedy’s opinion. He devoted only a few passages to that issue, noting that the clause does “converge” with Due Process considerations and pointing to the “synergy between the two protections.” But what was strikingly missing from the brief Equal Protection discussion was examination of the standard of review, whether the traditional “rational” basis used for most economic cases, U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) (“unrelated” persons in household ineligible for food stamps), the heightened “strict” scrutiny invoked in cases involving minorities and other protected classes, Loving v. Virginia, 388 U.S. 1 (1967) (inter-racial marriage), or some other criterion. The case, thus, leaves open the issue of Equal Protection for gays and lesbians, an issue likely to percolate in future litigation concerning employment, housing, and other matters.

In Minnesota, the melded Due Process and Equal Protection concepts, embedded within Article I, Section 7 of the state Constitution, have been construed, on occasion, to be more expansive than their federal counterparts. E.g. State v. Russell, 477 N.W.2d 881 (Minn. 1991) (Equal Protection violated by harsher punishment of crack cocaine than other drugs). Without further guidance from the high court on Equal Protection, more Article I, § 7 Constitution litigation may be forthcoming in Minnesota.

Another state constitutional provision that could be called into play relates to a brief passing remark in the high court’s decision extolling same sex marriage as a way for gays and lesbians to “express their identity.” This phrase suggests that there may be some First Amendment underpinning for the extension of rights to gays and lesbians.

One such claim could arise under the Freedom of Association clause of the U.S. Constitution. There is no explicit parallel provision in the state constitution, although the concept may be embraced with the Freedom of Expression provision of Article I, § 3. But Minnesota courts have declined to construe Article I, § 3 more broadly than its federal counterpart. State v. Wicklund, 589 N.W.2d 793 (Minn. 1999) (Mall of America not “public” premises for exercise of free speech).

Orientation omens

In the wake of the Supreme Court ruling, there has been much talk by its detractors of highlighting religious freedom issues to thwart same sex marriages or rights flowing from it.

This might not work well in Minnesota. Like 19 other jurisdictions and about 150 cities, it has a specific provision in the Human Rights Act barring discrimination based upon sexual orientation or affectional preference. Minn. Stat. § 363A.01, Subd. 44.

There have been mixed results in prior case law in Minnesota in parallel circumstances. The “freedom of conscience” provision of the Minnesota State Constitution, Article I, § 16, has been construed in many cases to be broader than the religious freedom counterparts in the First Amendment to the U.S. Constitution. E.g. State v. Hershberger, 469 N.W.2d 393 (Minn. 1990) (Amish need not comply with slow-moving signage required on buggies)However, Minnesota courts generally have not looked favorably upon claimants who assert religious rights in opposition to claims arising under the Human Rights Act. E.g. State by McClure v. Sports & Health Club, 370 N.W.2d 844 (Minn. 1985); State by Johnson v. Porter Farms, Inc.,382 N.W.2d 543 (Minn. App. 1986); Hill-Murray Fed’n of Teachers v. Hill-Murray High School, 478 N.W.2d 857 (Minn. 1992). But see Geraci v. Eckankar, 526 N.W.2d 391 (Minn. App. 1995).

It remains to be seen what omens may arise in clashes between sexual orientation issues and religious freedom claims in future Minnesota jurisprudence.

Ruling reprieve

Obergefell gave a reprieve to the 8th Circuit Court of Appeals, which was about to address its own same-sex marriage case. A decision this winter by a federal judge in Nebraska upholding same-sex marriage rights had reached the 8th Circuit at about the same time as the same-sex marriage case came rumbling through the chambers of the Supreme Court, Citizens forEqual Protection v. Bruning, 290 F.Supp.2d 1004 (Neb. 2015), along with three other comparable rulings earlier in Missouri, Arkansas, and South Dakota.

Although poised to hear the litigation, the 8th Circuit got a reprieve when the Supreme Court took the four consolidated 6th Circuit cases that comprised the Obergefelllitigation. The 8th Circuit then chose, on the day of the Supreme Court hearing, to defer a ruling on the Nebraska case, awaiting the anticipated decision of the High Court.

Its determination, therefore, mooted the 8th Circuit litigation, allowing the judges in this jurisdiction to bypass the issue.

Precedent pummeled

Not having to rule upon same-sex marriage allowed the 8th Circuit a chance to avoid establishing a precedent, however short-lived, prior to the Supreme Court’s determination.

But precedent was pummeled in the Supreme Court’s ruling; actually, it was more a victim of benign neglect. As previously noted, the Baker case hardly drew scant attention at oral argument. See “High Court barely bothers with Baker,” in the May 8, 2015, edition of Minnesota LawyerThat same disinterest in precedent underlay the multiple opinions of the judges in the case. In his majority decision, Justice Kennedy barely alluded to Baker, referring to it as an anachronism “defined by the world and time” it arose, before declaring that it “must be and now is overruled.” The four dissenters, for their part, barely mentioned it at all, content not to chafe about the majority’s decision on precedent-shattering grounds.

Ironically, the Supreme Court had, only four days earlier, focused with laser-like intensity on precedent, in deciding an intellectual property case, Kimble v. MarvelEntertainment576 U.S., No.13-720 (June 22, 2015). The ruling, by a 6-3 margin, upheld a 1964 decision against an investor who had signed an indefinite contract for royalty payments that, unbeknownst to him, were barred after expiration of the underlying patent as a result of the High Court’s much criticized decision more than 50 years in by Brulotte v. Thys Co.,374 U.S. 29 (1964). Writing for the majority, Justice Elena Kagan felt that the 1964 ruling was ill-advised, based on bad economic analysis and impairs innovation and competition. However, she and five of her colleagues, concluded that the decision must be applied to preclude royalties because “respecting stare decisis means sticking to some wrong decisions.” But Justice Kagan, who was part of the five justice majority in the Obergefellcase, did not feel compelled to follow the Baker precedent in that case, nor did any of her colleagues in the pro same-sex camp, or explain why stare decsisis was inapplicable.

The quartet of dissenters did not foray into that field either, even though they raised a ruckus four days earlier in the Kimble caseJustice Samuel Alito and two colleagues were apoplectic: they would have overturned the Brulotte precedent because “stare decisis does not require us to retain this baseless and damaging precedent.” They felt that following precedent “is important to the rule of law, but so are correct decisions.” One of Alito’s dissenting colleagues, Justice Clarence Thomas, also has shown no aversion to straying from precedent, doing so more often than any other High Court jurist. M.C. Erhardt, The Power of Precedent, p. 249 (Oxford Press, 2008).

But neither Alito nor Thomas, nor Chief Justice Roberts for that matter, who was part of the three-justice dissenting group in the Kimble case, four days before Obergefell, felt obliged to bring up the Bakerprecedent in their respective dissents against same-sex marriage. Their view that it was appropriate to disregard precedent at the beginning of the week in the Kimbleroyalties case was bypassed at the end of the week in the Obergefellsame-sex litigation.

Precedent was, for all of the justices, a matter upon which they remained mute in order to avoid making the case moot.

It will be intriguing to see how the disregard across the spectrum for following precedent, or deviating from it, in the marriage equality case may be addressed in future litigation. The departure from precedent inObergefellmay create a precedent for litigants and their lawyers to cite when challenging adverse controlling decisions in the future.

These issues and many others are likely to inspire intrigue in the post-Obergefell world, especially here in Minnesota, which many regard as ground zero for marriage equality and the litigation that has now adopted it.

Originally published by MinnLawyer.com