Magazine article National Catholic Reporter

Courts See a Run on Gay Marriage Litigation: Supreme Court Rulings Open the Doors for New Challenges to Bans

Magazine article National Catholic Reporter

Courts See a Run on Gay Marriage Litigation: Supreme Court Rulings Open the Doors for New Challenges to Bans

Article excerpt

When the U.S. Supreme Court in June altered the federal marriage definition to between two persons, it did not touch on the constitutionality of state bans against same-sex marriage. Rather, its decision opened the doors to a new wave of litigation and lower court rulings likely to bring the issue of marriage equality back to the nation's highest court.

Since the Supreme Court rulings--on the Defense of Marriage Act (DOMA) and California's Proposition 8--four states have legalized same-sex marriage. In November, governors in Hawaii and Illinois signed legislation. Outside those two states, all the action has happened in the courtrooms. In October, New Jersey Gov. Chris Christie dropped an appeal to a state judge's decision that same-sex couples could marry In December, New Mexico's Supreme Court unanimously approved of such unions in a state that previously had no laws permitting or banning them. Currently, 17 states and Washington. D.C., permit same-sex marriage.

In three other states, decisions are pending. The most prominent case is in Utah, where a federal judge ruled the state's ban was unconstitutional and that its current laws "demean the dignity of these same-sex couples for no rational reason." While more than 1,000 couples married after the Dec. 20 decision, their legal status remains in limbo after the U.S. Supreme Court stayed the decision as it awaits a review from a federal appeals court, expected in April.

That review will also impact Oklahoma. where a federal judge in mid-January placed a stay on his own ruling--that the state's ban violated the 14th Amendment's equal protection clause--until the appeals court ruled on Utah. And in Virginia, the attorney general decided Jan. 23 not to defend the state's marriage definition, which he called unconstitutional, and sided with the plaintiffs. Elsewhere, four same-sex couples sued Wisconsin Gov. Scott Walker Feb. 3 over the state's statute prohibiting out-of-state same-sex marriages for residents. Multiple media reports count as many as 47 lawsuits pending in 24 states.

The run on same-sex marriage rulings has direct ties to the dual Supreme Court decisions, specifically the United States v. Windsor case that altered DO-MA's marriage definition, said John Green, a political science professor at the University of Akron, in Ohio, who studies the relationship of religion to politics. The biggest reason for the recent wave of cases, he told NCR, is that the DOMA decision--even with its limited ruling and avoidance of the constitutionality question--"left the door open" for lower courts to take on the issue.

"What DOMA suggested was that the federal government had to have a very good reason for discriminating between same-sex and opposite-sex marriages, and the implication is that the states better have good reasons, too," Green said. "And, clearly, a number of these judges found that the states didn't have good reasons for having these laws."

In both the Oklahoma and Utah decisions, the judges drew their conclusions heavily from the DOMA decision. Wrote U.S. district judge Terence Kern in the Oklahoma case, "The 'state rights' portion of the Windsor decision stands for the unremarkable proposition that a state has broad authority to regulate marriage, so long as it does not violate its citizens' federal constitutional rights."

The recent string of DOMA-based rulings has accelerated the already rapid pace of marriage equality laws. As recently as 2007, only Massachusetts labeled same-sex unions as marriages. Before June's Supreme Court judgments, six states legalized same-sex marriage in a seven-month span. In those cases, evolving public opinion toward marriage equality and advocate campaigns factored heavily; for the court rulings, connecting the dots leads back to DOMA.

"The lower courts take their cues from the Supreme Court," Green said, "and when the Supreme Court breaks new ground on law, then that in turn affects how the district court judges resolve the cases in that area. …

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