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In June 2013 the United States Supreme Court decided two high profile marriage equality 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. Four circuit courts of appeal have now struck down bans on same-sex marriage since the Windsor ruling. On November 6, 2014, the Sixth Circuit became the first circuit court to uphold such a ban, setting up marriage equality’s inevitable return to the Supreme Court.
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 had a clear impact on the decisions of district and circuit court judges—nearly every decision since has relied to some extent on the reasoning and language in Windsor’s majority opinion.
Ironically, some federal 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.
Following a wave of district court rulings striking down marriage equality bans, three circuit courts weighed in this summer. The Tenth Circuit struck down bans on marriage equality in Utah on June 25, 2014, and in Oklahoma on July 18, 2014. The Fourth Circuit affirmed two pro-marriage equality rulings out of Virginia on July 28, 2014. Finally, the Seventh Circuit stuck down marriage bans in Wisconsin and Indiana on September 4, 2014. All seven cases came before the U.S. Supreme Court for writs of certiorari on September 29, 2014. One week later, the Court denied review in all of them. By allowing the rulings to stand, not only did the Supreme Court legalize same-sex marriage in the five states immediately affected, it has also led state attorney generals to stop defending and district court judges to strike down marriage bans in other states in those circuits. The following day, the Ninth Circuit ruled in favor of marriage equality.
On November 6, 2014, the Sixth Circuit became the first circuit court to uphold a same-sex marriage ban. Attorneys for the plaintiffs have announced they will appeal the decision to the Supreme Court. Justice Ruth Bader Ginsburg had earlier said that a disagreement on marriage equality between the circuits—specifically mentioning the Sixth Circuit—would create “some urgency in the Court taking the case.” Judge Martha Craig Daughtrey also predicted Supreme Court review in her Sixth Circuit dissent: “one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same sex marriage that could prompt a grant of certiorari by the Supreme Court.” The question is now one of timing. If the Court acts quickly to take the case, it could hear arguments in the spring of 2015 and issue a ruling by June 2015. Any sort of delay, however, would push oral arguments into the fall of 2015 and a decision into 2016.
Whenever the Supreme Court takes up this issue, it will be doing so with a groundswell of support for marriage equality in the lower courts. Since Windsor, 29 federal judges have found 18 bans on same-sex marriage to be unconstitutional. What’s striking is that the decisions invalidating same-sex marriage bans have come from judges from across the political spectrum. Of the 29 federal judges who have voted in favor of striking down a ban on marriage equality, 10 (or 35 percent) have been appointed by a Republican president. Six were appointed by President George W. Bush. Eighteen (or 62 percent) were appointed by Democratic presidents, including eight by President Obama. All of these judges agree—based on the Supreme Court’s Windsor decision—that the Constitution requires the right to marry be extended to same-sex couples.
Our country now awaits a final ruling from the U.S. Supreme Court, and the stakes are high. A pro-marriage equality decision could legalize same-sex marriage nationwide. An anti-marriage equality ruling could bring marriage bans back in dozens of states.
In this report, each federal lawsuit ruling on the legality of a same-sex marriage ban—beginning with Perry itself—is summarized by circuit, and each presiding judge is briefly profiled.
FULL REPORT UPDATED: November 11, 2014