The report discussed in this statement is available at: http://bit.ly/WxWhwg
In the year since the United States Supreme Court ruled on two marriage equality cases, federal courts in 11 states have struck down laws banning same-sex marriage, according to a new report from Alliance for Justice. Courts in two more states struck down laws prohibiting recognition of same-sex marriages performed elsewhere. Not one law against same-sex marriage has been upheld in that time.
The report includes details about each case, brief profiles of the judges in the cases and a chart tracking the status of every challenge to same-sex marriage in which a federal judge has ruled.
“State by state, case by case, federal courts hearing marriage equality cases are bending the arc of history toward justice,” said AFJ Director of Justice Programs Michelle Schwartz. “These decisions are encouraging not only for LGBT Americans, but also for all who cherish the fundamental principle of equal justice for all.”
Just over a year ago, in United States v. Windsor, the Supreme Court struck down a portion of the so-called “Defense of Marriage Act,” a federal law denying federal recognition of same-sex marriages. In Hollingsworth v. Perry, the Court also let stand, on procedural grounds, a lower court ruling overturning a same-sex marriage ban in California.
According to AFJ’s report, Love and the Law, “Windsor in particular has made a clear impact on the decisions of district court judges—every decision since has relied to some extent on the reasoning and language in Windsor’s majority opinion.”
But eight judges also have found another useful source for their decisions. According to the report:
Ironically, some district court judges have relied on Justice Scalia’s dissents in Windsor and Lawrence v. Texas (which struck down Texas laws criminalizing sodomy) to hold that, under current Supreme Court precedent, the Constitution guarantees same-sex couples the right to marry.
This may help explain why, as the report notes,
[J]udges from across the political spectrum are reaching the same conclusion in these cases. Of the 15 pro-same-sex marriage rulings at the district court level, six (or 40 percent) have been issued by Republican appointed judges, including one judge appointed by President George W. Bush. Eight rulings were issued by Democratic appointees, including four judges appointed by President Barack Obama.
In two of the cases in which federal judges have ruled there was no appeal. In two more, the ruling striking down a ban on same-sex marriage was upheld by an appellate court. In one an appellate court ruling is pending and nine more cases are on appeal. (This totals 14 because two separate cases from Kentucky are on appeal.) In addition, Nevada’s ban on same-sex marriage, which was upheld before the Supreme Court issued its rulings last year, is on appeal.
Ultimately, one or more of these cases is likely to reach the United States Supreme Court. Utah already has asked that Court to review the decision overturning the same-sex marriage ban in that state.
If the Court accepts that case, the report notes,
[I]t will be its first opportunity to decide whether the federal Constitution’s guarantee of marriage equality, already recognized when the Court struck down race-based restrictions on marriage in Loving v. Virginia, extends to same-sex couples. Since Windsor, the lower federal courts have been unanimous in their agreement that it does, recognizing rights for hundreds of thousands of same-sex couples that could vanish with an adverse Supreme Court ruling.
Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. Through our justice programs, we lead the progressive community in the fight for a fair judiciary, and through our advocacy programs, we help nonprofits and foundations to realize their advocacy potential. Learn more about Alliance for Justice at afj.org.