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In June 2013 the United States Supreme Court decided two high profile same-sex marriage cases, United States v. Windsor and Hollingsworth v. Perry. 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.
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,” 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.”
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—every decision since has relied to some extent on the reasoning and language in Windsor’s majority opinion. 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.
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.
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, no federal or state court has upheld a same-sex marriage ban. Currently 12 bans on same-sex marriage have been invalidated by federal district court judges. Of those, nine are on appeal, two have not been appealed, and one appeal was dismissed by the Supreme Court. Two 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 have also been appealed. The remaining cases are all in various stages of litigation at the district court level.
What’s striking is that judges 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. 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.
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 decided to petition 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. It is likely that Oklahoma officials will also seek review from the Supreme Court. While the Court typically waits for the circuit courts to disagree on a particular issue before taking a case, it has the prerogative to either grant or deny Utah’s or Oklahoma’s petition. For example, the Court may elect to hear one or both of these cases simply to provide finality on an issue that is currently the subject of litigation all over 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. Some commentators have noted that the Eighth Circuit upheld a Nebraska same-sex marriage ban in 2006, meaning that—even though that case was decided pre-Windsor—there may already be a valid disagreement between circuit courts. Since the Court decided the Perry case on procedural grounds, if it takes up one or both of the Tenth Circuit 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 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, 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.
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.
 United States v. Windsor, 570 U.S. −, 133 S. Ct. 2675 (2013).
 Hollingsworth v. Perry, 570 U.S. −, 133 S. Ct. 1521 (2013).
 Windsor, 133 S. Ct. at 2695.
 Id. at 2693.
 Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting).
 Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting).
 As noted below, one federal judge upheld a ban prior to the Windsor and Perry decisions. That case is still being litigated on appeal.
 One ruling was issued by a Magistrate Judge, which is not a presidentially appointed position.
 Robert Barnes, From a diverse group of judges, a unanimous opinion on same-sex marriage, The Washington Post (May 26, 2014) http://www.washingtonpost.com/politics/from-a-diverse-group-of-judges-a-unanimous-opinion-on-same-sex-marriage/2014/05/26/9790b1b8-e1f1-11e3-9743-bb9b59cde7b9_story.html.
 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 http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf.
 Citizens for Equal Prot. v. Brunning, 455 F.3d 859 (8th Cir. 2006).
 Lyle Dennison, Utah same-sex marriage case on way to the Court (UPDATED), SCOTUSblog (Jul. 9, 2014, 5:05 PM), http://www.scotusblog.com/2014/07/utah-same-sex-marriage-case-on-way-to-the-court/.
 Loving v. Virginia, 388 U.S. 1 (1967).