Jean Mixner and Madelynn Lee Taylor at a Veterans Day ceremony.
BY ARTHUR S. LEONARD | In light of the Supreme Court’s June 26 marriage equality ruling in Obergefell v. Hodges, the resolution of Madelynn Lee Taylor’s lawsuit against the Idaho State Veterans Cemetery in Boise seems obvious.
Taylor is a 74-year-old veteran of the US Navy who married Jean Mixner in a religious ceremony in 1995, and then again legally in a 2008 civil ceremony in California. Mixner passed away in 2012 and was cremated. Taylor kept the ashes, intending that when the time came she would be cremated as well and they would be buried together in a military cemetery.
In December 2013, Taylor went to the cemetery to make the arrangements. Six month later, she received a letter from the cemetery’s director informing her she could be buried there, but not together with her spouse, because the marriage was not recognized under Idaho law. Taylor filed suit last July, requesting an injunction to compel the cemetery to honor her request.
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A few months later, the Ninth Circuit Court of Appeals ruled, in Latta v. Otter, that Idaho’s recognition ban was unconstitutional, and in October the Supreme Court denied a motion for stay pending appeal by Idaho. On October 28, the cemetery allowed interment of Mixner’s ashes, having concluded that Idaho’s recognition ban was ended. The defendant in this case, David Brasuell, administrator of the cemetery, filed a motion to dismiss, claiming the case was moot since Mixner’s ashes had been interred and the Idaho Division of Veterans Services had granted Taylor’s request.
Taylor responded with a motion for summary judgment, asking the court to issue the requested injunction, just to be sure that her request to be buried with her spouse would be honored.
The cross-motions in this case remained pending before US Magistrate Judge Ronald E. Bush, who evidently held up on ruling until a decision was rendered in Obergefell. Bush then, on July 9, came down in favor of Taylor, issuing the requested injunction.
“This Court is not persuaded that Veterans Services, via Mr. Brasuell, has borne its ‘formidable’ burden of establishing that it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,’” the judge wrote. “Perhaps, even without an enforceable order ensuring that Ms. Taylor and Ms. Mixner will be permanently interred together at the Idaho Veterans Cemetery, they would nonetheless be so laid in perpetuity. But notwithstanding the rulings in Latta and Obergefell, a future director at Veterans Services or the Idaho State Veterans Cemetery (or some other applicable state actor) may come to view his or her role as being responsible for deciding what is/ is not constitutional under the law on matters that may impact Ms. Taylor’s claimed right to be interred there with her same-sex spouse. It is not unusual for legal precedent –– even Supreme Court decisions –– to be tested in such ways over time to ‘settle the pond’ on novel and evolving issues. Dismissal on the grounds of mootness would be justified only if this possibility was categorically foreclosed or, said another way, if it was absolutely clear that Ms. Taylor no longer had any need of the judicial protection that she seeks. The record now before the Court does not support such a conclusion.”
In a footnote, Bush explained the particular predicament that might arise if the case were dismissed as moot and then after Taylor’s death the cemetery’s administrators might change their minds and deny burial. At that point, it would be questionable whether her executor or administer would have standing to bring an action, since only living persons have legal rights to assert. The judge concluded that Taylor was entitled to the peace of mind of obtaining injunctive relief now.
Taylor was represented by the National Center for Lesbian Rights and Boise attorneys Deborah A. Ferguson and Craig Durham.