Following Obergefell in the lower courts

Lots of action within the Eighth Circuit in the lower courts on how to apply Obergefell to bans in other states. Judge Crabtree of the District of Kansas* issued an initial order (H/T: Lyle Denniston at SCOTUSBlog, who has a nice summary of the decision, as well as some other development). The Eight Circuit issued substantially identical per curiam orders in appeals involving laws from Nebraska, South Dakota, and Arkansas, affirming preliminary injunctions or final judgments invalidating the laws in those states.

* Which is not located in the Eighth Circuit.

Some comments after the jump.

First, Judge Crabtree nails the connection between Obergefell and this case. The SCOTUS decision "considered same-sex marriage bans enacted in Michigan, Ohio, Kentucky, and Tennessee. It did not rule, at least not directly, on Kansas’ ban against such marriages. The Court’s job now is to apply Obergefell to the Kansas law." Once he reached the merits, the judge necessarily concluded that Obergefell resolves the plaintiffs' constitutional claim and entitles them to judgment on their claims for relief. The Eighth Circuit similarly applied Obergefell to conclude that the challenged laws are unconstitutional.

Second, the courts rejected the arguments that Obergefell moots these challenges. They all recognized that, because Obergefell itself compelled no action by officials in these four states, their mootness arguments amount to promises of voluntary cessation, which typically is not enough to moot a case. The marriage bans remain on the books in every state. At best, officials in Kansas seemed to be moving towards compliance with Obergefell, but had not yet gotten there (for example, it still was not clear a same-sex married couple could file a joint tax return or change names on drivers' licenses), but had not necessarily gotten there. And the fact that officials in every state are issuing licenses to same-sex couples is not sufficient, since that was being done on the strength of a district court's original injunction.

Third, in what might be an interesting development (one I had not previously thought of), the court of appeals and district court both suggested that the states' efforts at voluntary compliance perhaps affected whether permanent injunctive relief is unnecessary or impermissible. Judge Crabtree ordered further briefing on the question and the Eighth Circuit left it to the district courts on remand. Compliance was not a question of constitutional mootness, but of the court's discretionary equity analysis. Importantly, however, this did not affect declaratory relief, which remained proper and which will be entered in every case. This is significant for purposes of plaintiffs recovering attorney's fees--a declaratory judgment, even unaccompanied by an injunction, is sufficient to make them prevailing parties.

Fourth, Kansas tried to argue that the injunction requiring the state-employee health plan administrator to include same-sex spouses in the plan violated the Eleventh Amendment because it required money from the state in the form of benefits. But the court rejected this argument quickly and correctly--this falls into the "prospective compliance" exception, under which a purely prospective injunction is not barred by the Eleventh Amendment, even if compliance costs the state money.

Update I: In response to Maureen's comment, I shorthanded the point too much. A declaratory judgment alone will not always merit attorney's fees. But in the marriage cases, it should be, as there has been a change in the defendants' behavior and in the relationship between the defendants and the plaintiffs.

Update II: An alert reader points me to Sam Bray's The Myth of the Mild Declaratory Judgment (reviewed by Marin Levy here). Sam's theory is that declaratory judgments and injunctions represent alternative remedies, each appropriate in a different type of case. Under that theory, a D/J without an injunction is the appropriate remedy in the marriage cases, which require a change of behavior but minimal judicial oversight or monitoring.