Somewhere in a Texas hospital last night, a woman sat by her wife’s bedside waiting for a doctor to tell her whether the person she had built her life with was likely to survive. Yet, despite the agony of caring for a sick loved one, this woman at least knew that she did not need to fear for her job, as a federal regulation forbade her employer from firing her for caring for her wife. Or, at least, that regulation was supposed to give her such peace of mind. On Thursday, a George W. Bush-appointed federal judge stripped this woman — and thousands of other men and women like her — of her right to take leave from work to be with her sick spouse.
Judge Reed O’Connor is fighting against a strong current of decisions favoring marriage equality. Moreover, the Supreme Court has not simply agreed to hear the question of whether the Constitution permits states to deny equal marriage rights to same-sex couples, it has offered clear signs that it will ultimately side with equality. Indeed, these signs have been so clear that Justice Clarence Thomas, a conservative who is widely expected to side with advocates of marriage discrimination, complained in a dissenting opinion last month that the Court’s willingness to allow marriages to begin in many states “may well be seen as a signal of the Court’s intended resolution of that question.”
Nevertheless, O’Connor, a federal trial judge in Texas, handed down a last-ditch effort to deny many gay couples their equal marriage rights on Thursday.
The Family Medical Leave Act (FMLA) permits workers to take unpaid leave to care for many of their family members, including their spouse, without having to fear that they will lose their job for doing so. In the wake of the Supreme Court’s 2013 decision United States v. Windsor, which struck down the anti-gay Defense of Marriage Act, the U.S. Department of Labor promulgated a rule providing that the validity of a marriage for purposes of the FMLA would be determined by looking “to the law of the jurisdiction in which the marriage was entered into.” Thus, for example, if two men got married in New York (which honors the Constitution’s promise of marriage equality), and then moved to Texas (which does not), one of those men would still be able to take FMLA leave if his husband grew ill. This rule was supposed to take effect on Friday.
Just hours before this rule would have gone into effect, however, Judge O’Connor handed down an order halting the rule. Yet his opinion combines an unusually narrow reading of the Court’s decision in Windsor with a misunderstanding of Congress’s lawful authority under the Constitution. It also ignores the Supreme Court’s recent actions on marriage equality.
The order O’Connor issued on Thursday is known as a “preliminary injunction,” meaning that it halts the Labor Department’s equality rule until a full trial on the merits determines whether the rule is valid. To win a preliminary injunction, however, the four states that sued challenging equal rights to gay couples — Texas, Arkansas, Louisiana, and Nebraska — had to demonstrate that they had a “substantial likelihood of success on the merits.”
The mere fact that marriage equality is currently before the Supreme Court is not enough to prevent these four states from making such a showing, but the Court has done far more than simply announce that they will decide this question. Even before the Court agreed to hear this issue, it took the unusual step of allowing lower court orders supporting marriage equality to take effect. Under normal circumstances, the justices prefer to maintain the pre-litigation status quo until after they have weighed an issue of national importance — and they normally follow this practice for good reason. It would be profoundly cruel for the courts to extend equal marriage rights to couples in many states, only to have those rights yanked away months later by the justices.
The Supreme Court continued to allow new lower court orders supporting equality to take effect after it agreed to decide the fate of marriage equality. This practice is what prompted Justice Thomas to complain that his colleagues were signaling that they intended to strike down marriage discrimination later this year.
O’Connor’s claim that there is a “substantial likelihood” that the four anti-gay state plaintiffs will prevail in their challenge to the Labor Department’s rules requires a kind of willful ignorance of this history. The Supreme Court does not ordinarily telegraph its future decisions with such clarity, but in this case it has — and Judge O’Connor should have listened.
Instead, O’Connor largely rests his opinion on the fact that a provision of DOMA — which provides that states do not need to “give effect” to another state’s actions “respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State” — was not struck down in Windsor. This is true as far as it goes, as that provision was not at issue in the Windsor case, but it begs the question of whether any state may lawfully deny equal marriage rights to gay couples under the Constitution. Though O’Connor acknowledges that federal appeals courts disagree on the correct answer to this question, he papers over the fact that the overwhelming majority of federal judges to consider the question since Windsor have agreed that marriage discrimination is impermissible.
To O’Connor, this is a case about whether the Department of Labor may “unilaterally impose its definition of marriage upon the states.” According to his opinion, “Congress has not delegated to the Department the power to force states defining marriages traditionally to afford benefits in accordance with the marriage laws of states defining marriage to include same-sex marriages.” Ultimately, however, both the Department of Labor and the plaintiff states in this litigation are bound by an even higher authority than Congress — the Constitution of the United States. Though O’Connor’s decision may succeed in thwarting that Constitution for a few days or even a few months, depending on how long it takes for a higher court to stay or reverse his order, it is unlikely that O’Connor’s eleventh-hour attack on equality will ultimately prevail.