How Wide the Impact is of The Supreme Court Decision on Gay Marriage
The sweeping significance of the Supreme Court’s landmark gay-rights decision in United States v. Windsor, last June, has become even more evident in the past month, thanks to a series of important lower-court decisions that have interpreted it broadly. The Supreme Court’s ruling in Windsor invalidated the federal Defense of Marriage Act (DOMA), but the Court stopped short of finding a constitutional right to same-sex marriage. In another decision, delivered on the same day in June, the Court restored marriage equality in California, though it did so on procedural grounds, dismissing a challenge to a lower-court ruling that overturned Proposition 8, the state’s gay-marriage ban, on the grounds that the plaintiffs lacked legal standing.
Taken together, the decisions indicated that while the Supreme Court was willing to substantially advance the cause of same-sex marriage, it was not yet ready to find a constitutional right to marriage equality. Seven months later, it is now clear that gay-rights advocates and lower-court federal judges are not inclined to accept further delays—and, moreover, that the language of the Windsor decision may have been so powerful that the Court in fact accelerated a movement it sought to temporarily restrain.
After the Supreme Court’s decisions in June, four more states moved to legalize same-sex marriage. New Jersey was the first, in October, after Governor Chris Christie withdrew his appeal of a state court’s decision granting marriage equality. In November, state legislatures in Hawaii and Illinois passed long-stalled same-sex-marriage bills. And in December, the New Mexico Supreme Court unanimously ruled to affirm the right of same-sex couples to marry there, bringing the total number of states that allow same-sex marriages to seventeen.
It was not until last month, however, that a federal court expressly invoked the Windsor decision to rule that the Constitution required finding a right to same-sex marriage. That decision came just before Christmas, in the deeply red state of Utah. (In a sign that public opinion truly is changing, a statewide poll conducted by the Salt Lake City Tribune found respondents evenly split on the question of whether same-sex couples in Utah should be allowed to marry.) Utah officials were unable to halt same-sex weddings until their appeal travelled all the way up the judicial chain to the Supreme Court, which granted a highly unusual interim stay after some thirteen hundred gay weddings had already taken place.
On January 14th, another federal district court, in Oklahoma, reached a similar conclusion, finding that, in light of Windsor, the state’s constitutional amendment outlawing gay marriage violated the U.S. Constitution. (The judge, however, stayed the effect of the ruling pending appeal, so there has been no rush by same-sex couples to marry in Oklahoma.)
Roberta Kaplan, the attorney who argued the Windsor case in the Supreme Court, explained how the ruling had led to results beyond what the Court may have intended originally. “It’s not the holding in Windsor that is so controlling right now,” she said. “It’s the logic and reasoning behind the Court’s decision—namely, that gay people deserve the same legal rights and protections as everyone else.” In both the Utah and Oklahoma cases, the courts addressed, and eventually rejected, the argument that Windsor holds only that marriage issues should be deferred to individual states. Windsor was not primarily about states’ rights; the district courts in Utah and Oklahoma rejected the idea that some states, like New York, could allow gay marriage, while others could decide differently. (Both the Utah and Oklahoma cases will be heard by the Tenth Circuit Court of Appeals, in Denver, which is considered a moderate and evenly split court, making the outcome hard to predict.)
The expanding reach of Windsor was visible in another decision, last week, in an appellate-court case that seemed at first of interest only to lawyers. On January 21st, the Ninth Circuit Court of Appeals ruled that prospective jurors could not be excluded on the basis of their sexual orientation. The court based its opinion on the Windsor decision, ruling that the Supreme Court had applied a new, heightened level of scrutiny for equal protection based on sexual orientation, even if it had not expressly articulated that new standard. The judges went on to argue that, under the standard applied in Windsor, the government could not treat people differently based on their sexual orientation. The decision made the Ninth Circuit, which covers the western United States, the first circuit court to grant “heightened scrutiny” to sexual orientation—making it far less likely that laws which discriminate on these grounds will survive constitutional challenges.
Nevada’s same-sex-marriage ban has already been challenged in the Ninth Circuit, in a case called Sevcik v. Sandoval, brought by Lambda Legal. The state of Nevada filed its briefs defending the ban on the same day as the circuit court’s ruling in the jury-selection case. Three days later, on January 24th, Nevada’s Attorney General, Catherine Cortez Masto, said that she would reconsider her defense of the ban, noting that the circuit-court decision had rendered Nevada’s argument “no longer tenable.” A ruling in favor of marriage equality from the Ninth Circuit in the Nevada case is therefore highly likely.
Last Thursday, the newly elected Attorney General of Virginia, Mark Herring, announcedthat he would not defend Virginia’s ban on same-sex marriage in a case brought by the lawyers Ted Olson and David Boies, who were responsible for the successful litigation against Proposition 8 in California. A final hearing in that case is scheduled for Thursday, and many observers believe that without the state defending it, the Virginia ban will quickly be struck down.
What will happen next? Kevin Cathcart, the executive director of Lambda Legal, told me that by his estimate, there were “thirty-seven cases pending in nineteen non-marriage-equality states.” He said it would be impossible to predict which state will be the next to recognize same-sex marriage, because “there are too many cases in play.”
“The point is that now judges don’t have to write from scratch on this,” Arthur S. Leonard, a professor at New York Law School and an expert on gay-rights law, said. Assuming that the lower federal courts “will follow the precedents that have been piling up since June, they can do a quick paraphrase from the Utah and Oklahoma rulings, and it will be fine,” he told me. “There is no longer any need to be original.”
Richard Socarides is an attorney and longtime gay-rights advocate. He served in the White House during the Clinton Administration and has also been a political strategist. He now oversees public affairs at GLG. Opinions expressed here are only his own. Follow him on Twitter @Socarides.
Comments