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Love and the Law Weekly Update

October 17, 2014: The fallout continues from the Supreme Court’s denial of certiorari in seven marriage equality cases last Monday. This weekly update tracks the states in the U.S. Courts of Appeals for Fourth, Ninth, and Tenth Circuits that did not have marriage equality as of last week. For a complete overview, see the October 10, 2014 update below.

Fourth Circuit:

  • North Carolina: Last Friday, U.S. District Judge Max O. Cogburn, Jr. struck down the state’s ban on marriage equality. Marriages began immediately. North Carolina Attorney General Roy Cooper has not announced whether he will appeal the decision. Five days later, U.S. District Judge William L. Osteen, Jr. also struck down the ban, but gave Republican state legislative leaders the option to appeal. They will likely do so.
  • South Carolina: A lawsuit over South Carolina’s ban on same-sex marriage is pending in federal district court. A ruling is not expected for at least the next several weeks.

Ninth Circuit:

  • Alaska: On Sunday, U.S. District Judge Timothy M. Burgess struck down Alaska’s ban on marriage equality. The Ninth Circuit temporarily delayed the ruling, but same-sex marriages became legal in the state this afternoon. Alaska officials say they will appeal the decision to the U.S. Supreme Court.
  • Arizona: This morning, U.S. District Judge John Sedwick applied the Ninth Circuit’s marriage equality decision to Arizona and struck down the state’s marriage ban. The judge also refused to issue a stay, meaning same-sex marriages will begin in the state immediately. Arizona Attorney General Tom Horne announced the state will not appeal the decision.
  • Idaho: Last Friday, the U.S. Supreme Court ended its temporary stay of the Ninth Circuit’s ruling, allowing marriage equality to go forward in Idaho. The state began issuing marriage licenses on Wednesday.
  • Montana: A federal case seeking to strike down the state’s marriage ban is still pending.

Tenth Circuit:

  • Kansas: Last Friday, the Kansas Supreme Court halted same-sex marriages that had been allowed in one county by a state district judge. A federal case is still pending.
  • Wyoming: Today, U.S. District Judge Scott Skavdahl issued a preliminary injunction that will allow same-sex couples in the state to marry. The judge stayed the ruling, pending appeal, until Thursday, October 23.

October 10, 2014: The Supreme Court’s decision to deny certiorari in seven cases on Monday and the Ninth Circuit’s ruling on Tuesday means that there are now four circuit courts—the Fourth, Seventh, Ninth, and Tenth—that have issued rulings striking down same-sex marriage bans. These decisions are binding on all states in those circuits, and have led to a series of rapid legal developments across the country.

  • Fourth Circuit: Same-sex marriages began in Virginia on Monday, immediately following the supreme Court’s decision. In West Virginia, state officials announced on Oct. 9 that they would no long enforce the state’s ban. Same-sex marriages will begin there next week. In North Carolina, Republican state party leaders today moved on behalf of the state legislature to intervene in a pending lawsuit over marriage equality in federal district court. The state’s attorney general had told the district court judge that the circuit court decision striking down marriage equality bans should apply in North Carolina. In South Carolina, state officials announced they would continue to defend the state’s ban. However, some county officials have begun issuing marriage licenses to same-sex couples. The legal status of these marriages is unclear. Maryland, the final state in the circuit, already has marriage equality.
  • Seventh Circuit: Wisconsin and Indiana both began issuing marriage licenses to same-sex couples on Monday, following the Supreme Court’s decision. Illinois, the other state in the circuit, already has marriage equality.
  • Ninth Circuit: State officials in Idaho have appealed the circuit court ruling to the Supreme Court. On Wednesday, Justice Anthony Kennedy issued a stay, allowing the state to refuse to issue marriage licenses. It is unclear how long the stay will be in effect. In Nevada, after some initial confusion, same-sex marriages began late yesterday evening. State officials in Alaska, Arizona, and Montana are continuing to defend their states’ bans. California, Oregon, Washington, and Hawaii already have marriage equality.
  • Tenth Circuit: Utah and Oklahoma began issuing marriage licenses after the Supreme Court’s decision on Monday. Colorado announced it would need to go through some formalities, but same-sex marriages would begin there soon. In Kansas, a state judge ordered same-sex marriages to begin in one county, but it appears the state will continue defending the ban in the rest of the counties. Wyoming officials have announced they will continue to defend their state’s ban. New Mexico, the other state in the circuit, already has marriage equality.

On October 7, 2014, the U.S. Court of Appeals for the Ninth Circuit struck down bans on same-sex marriage in Nevada and Idaho. As expected, the court applied a heightened scrutiny standard to discrimination based on sexual orientation and found that same-sex marriage bans could not meet that high standard. The opinion was unanimous, but also included two concurrences presenting additional reasons for striking down the bans. Judge Stephen Reinhardt argued that the Due Process Clause of the U.S. Constitution provided a fundamental right to marry to all same-sex couples. Judge Marsha Berzon argued that the bans also discriminated on the basis of gender, and thus were unconstitutional under the Equal Protection Clause. It is unclear at the moment whether the court will issue a stay, and whether either state will appeal the decision to the United States Supreme Court.

On October 6, 2014, the United States Supreme Court denied certiorari in all seven cases pending before the Court: Herbert v. Kitchen (Utah), Smith v. Bishop (Oklahoma), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), McQuigg v. Bostic (Virginia), Bogan v. Baskin (Indiana), and Walker v. Wolf (Wisconsin).  The decision lifts the stays issued in those cases, which allows same-sex marriages to begin immediately in those states.  The Supreme Court will likely have more petitions for certiorari before it when the U.S. Court of Appeals for the Fifth, Sixth, Ninth, and Eleventh Circuits make their rulings in the pending marriage equality cases discussed in the report. If any court upholds a marriage equality ban, it will create a circuit split, which increases the chances the Court will accept one of the cases.  Read more about AFJ’s response to the decision here.



In June 2013 the United States Supreme Court decided two high profile marriage equality cases, United States v. Windsor1 and Hollingsworth v. Perry.2 Neither squarely addressed the question of whether same-sex couples have a constitutional right to marry, but both favored the trend toward marriage equality and spurred a new string of federal litigation, much of which has already been successful, aimed at striking down same-sex marriage bans in the states. On September 29, 2014, the issue of marriage equality will return to the Supreme Court for the first time since Windsor and Perry, when the Court considers requests from parties in seven cases that it review lower court decisions striking down same-sex marriage bans.

In Windsor, the Court ruled 5-4 that Section 3 of the Defense of Marriage Act (DOMA), which limited federal recognition to opposite-sex marriages only, was unconstitutional. The Court’s rationale invoked both federalism and equal protection. Much of the opinion was devoted to the states’ prerogative to include same-sex couples within the definition of marriage, but the Court also observed that DOMA impermissibly “demeaned” and “stigmatized” an entire class of people. Writing for the majority, Justice Kennedy said that DOMA violated the Fifth Amendment because it “demeaned those persons who are in a lawful same-sex marriage,”3 and “imposed a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”4

The Court decided Perry on procedural grounds and did not reach the merits, but the ruling left in place a district court decision that struck down California’s same-sex marriage ban. In Perry, same-sex couples challenged Proposition 8, a California state constitutional amendment banning same-sex marriage that passed in 2008. After the plaintiffs won at trial in the Northern District of California (explained in more detail below), the State of California declined to defend the marriage ban, leaving only proposition proponents to appeal. After a Ninth Circuit decision affirming the district court, the Supreme Court held 5-4 that proponents of the marriage ban had not suffered “an injury in fact,” and therefore lacked standing to appeal the district court’s order. As such, the Ninth Circuit decision was vacated, the district court judgment was restored, and same-sex marriages resumed in California.

Both decisions have sparked further litigation in federal courts across the country, and Windsor in particular has made a clear impact on the decisions of district court judges—nearly every decision since has relied to some extent on the reasoning and language in Windsor’s majority opinion.5 For example, although Windsor did not explicitly decide the issue, some courts have read the opinion to require a “heightened level” of constitutional scrutiny for laws that discriminate on the basis of sexual orientation—just like laws that discriminate on the basis of race or national origin or gender.

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. In Windsor, Justice Scalia noted the majority’s clear invocation of equal protection concerns and observed:

[T]he majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has ‘the purpose and effect to disparage and to injure’ the ‘personhood and dignity’ of same-sex couples. 6

And dissenting in Lawrence, Scalia mocked the majority for issuing an opinion that, taken to its logical conclusion, would mean a constitutional right to same-sex marriage:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.7

Now more plaintiffs are relying on Scalia’s analysis of Windsor and Lawrence to argue that no legitimate state interest is furthered by banning same-sex marriage.

Plaintiffs in every state with a same-sex marriage ban have filed either state or federal lawsuits challenging those bans. Since the Supreme Court’s rulings, federal courts have upheld a same-sex marriage ban in only one state. 8 Currently 14 bans on same-sex marriage have been invalidated by federal district court judges. Of those, 11 are on appeal, two have not been appealed, and one appeal was dismissed by the Supreme Court. Seven district court rulings striking down same-sex marriage bans have been affirmed at the circuit court level. Additionally, three district court judges have struck down (either partially or entirely) state bans on recognizing valid same-sex marriages performed in other states. Those rulings also have been appealed. The remaining cases are all in various stages of litigation at the district court level.

What’s striking is that the decisions striking down same-sex marriage bans have come from judges from across the political spectrum. Of the 18 pro-same-sex marriage rulings at the district court level, seven (or 39 percent) have been issued by Republican appointed judges, including one judge appointed by President George W. Bush. Ten rulings were issued by Democratic appointees, including five judges appointed by President Barack Obama.9 Each of these judges agrees—based on the Supreme Court’s Windsor decision—that the Constitution requires that the fundamental right to marry be extended to same-sex couples.10

A decision striking down a same-sex marriage ban in the District of Utah, discussed further below, was the first to reach a federal court of appeals since the Perry and Windsor decisions. The Tenth Circuit affirmed the District Court’s decision on June 25, 2014, and Utah officials have petitioned the Supreme Court for review. The Tenth Circuit ruled again on July 18, 2014, affirming the decision from the Northern District of Oklahoma striking down that state’s same-sex marriage ban. Similarly, the Fourth Circuit ruled on July 28, 2014, to affirm two decisions from the Eastern District of Virginia striking down that state’s ban. Most recently on September 4, 2014, the Seventh Circuit affirmed decisions from the Western District of Wisconsin and Southern District of Indiana that had struck down same-sex marriage prohibitions in their respective states.11 Defendants and plaintiffs from all seven cases have sought review by the Supreme Court. Although it is unusual for the prevailing parties to support Supreme Court review, the plaintiffs in all the cases have done so here because of their desire to resolve on a nationwide basis the question of the constitutional right to same-sex marriage.

While the Court typically waits for the circuit courts to disagree on a particular issue before taking a case,12 it has the prerogative to either grant or deny any or all of the petitions. For example, the Court may elect to hear one or all of these cases simply to provide finality on an issue that is currently the subject of litigation across the country. The Court may also hold the petitions to see if disagreement—or a “circuit split”—on the issue of same-sex marriage develops. The Sixth Circuit recently heard oral arguments on several state bans and may be the first appellate court to uphold such bans since Windsor. The panel of three judges appears to have one judge in favor of the bans, one opposed, and one judge—conservative John Sutton—who is a potential swing vote. Some commentators have noted that the Eighth Circuit upheld a Nebraska same-sex marriage ban in 2006,13 meaning that—even though that case was decided pre-Windsor—there may already be a valid disagreement between circuit courts.14 Since the Court decided the Perry case on procedural grounds, if it takes up one or all of the pending cases, it will be the first time the Supreme Court will rule on the constitutionality of a state same-sex marriage ban on the legal merits.

As these cases work their way through the courts of appeals and ultimately to the Supreme Court, the stakes are enormous. If the Court accepts the Tenth, Fourth, or Seventh Circuit cases for review, it 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,15 extends to same-sex couples. Since Windsor, the lower federal courts have been nearly unanimous in their agreement that it does,16 recognizing rights for hundreds of thousands of same-sex couples that could vanish with an adverse Supreme Court ruling. On the other hand, a favorable ruling would ensure that same-sex marriage rights are guaranteed equally nationwide.

In this report, each federal lawsuit ruling on the legality of a same-sex marriage ban—beginning with Perry itself—is summarized in chronological order, and each presiding judge is briefly profiled.

FULL REPORT UPDATED:  September 24, 2014


  1. United States v. Windsor, 570 U.S. −, 133 S. Ct. 2675 (2013). 

  2. Hollingsworth v. Perry, 570 U.S. −, 133 S. Ct. 1521 (2013). 

  3. Windsor, 133 S. Ct. at 2695. 

  4. Id. at 2693. 

  5. The lone exception being Merritt v. AG, No. 13-215-BAJ-SCR, 2013 U.S. Dist. LEXIS 162583 (M.D. La. Nov. 13, 2013) in which Middle District of Louisiana Judge Brian A. Jackson adopted a magistrate’s ruling against a pro se plaintiff who claimed his constitutional rights were violated by Louisiana’s ban on same-sex marriage. The magistrate judge wrote in his opinion that the Supreme Court’s 1972 case in Baker v. Nelson, 409 U.S. 810, in which the Court dismissed a challenge against a ban on same-sex marriage “for want of a substantial federal question,” was still binding. Merritt v. AG, No. 13-215-BAJ-SCR, 2013 U.S. Dist. LEXIS 163235 (M.D. La. Oct. 2, 2013). 

  6. Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting). 

  7. Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting). 

  8. Robicheaux v. Caldwell, 986 F. Supp. 2d 749 (E.D. La. Sept. 3, 2014); Merritt v. AG, No. 13-215-BAJ-SCR, 2013 U.S. Dist. LEXIS 162583 (M.D. La. Nov. 13, 2013). As noted below, one federal judge upheld a ban prior to the Windsor and Perry decisions. That case is still being litigated on appeal. 

  9. One ruling was issued by a Magistrate Judge, which is not a presidentially appointed position. 

  10. Robert Barnes, From a diverse group of judges, a unanimous opinion on same-sex marriage, The Washington Post (May 26, 2014), 

  11. Baskin v. Bogan, Nos. 14-2386, No. 14-2526, 2014 U.S. App. LEXIS 17294 (7th Cir. Sept. 4, 2014). 

  12. The Supreme Court will often wait until there is a disagreement between circuit courts on a particular issue of law, creating a so-called “circuit split”. Rules of the Supreme Court of the United States, Rule 10, 5-6 (2013) available at 

  13. Citizens for Equal Prot. v. Brunning, 455 F.3d 859 (8th Cir. 2006). 

  14. Lyle Dennison, Utah same-sex marriage case on way to the Court (UPDATED), SCOTUSblog (Jul. 9, 2014, 5:05 PM), 

  15. Loving v. Virginia, 388 U.S. 1 (1967). 

  16. Contra Robicheaux v. Caldwell, 986 F. Supp. 2d 749 (E.D. La. Sept. 3, 2014); Merritt v. AG, No. 13-215-BAJ-SCR, 2013 U.S. Dist. LEXIS 162583 (M.D. La. Nov. 13, 2013).