The State of Play Now on Marriage Equality

Yesterday at Cornell University I participated on a Reunion Panel co-sponsored by the CU Gay & Lesbian Alumni Association (CUGALA) and the Law School, titled “One Year Later: U.S. Law and Politics in the Post-DOMA World.” My assigned task on the panel was to discuss how the response to U.S. v. Windsor has played out over the ensuing 11 months. My prepared text is in two parts: a chronology of events, and a discussion of legal doctrine with predictions for the future. Due to time constraints, I was only able to cover the chronology, and that with some rushing. I’ve decided to post the full text, which I subjected to some post-talk editing, here:

After Windsor: The Ongoing Campaign for Marriage Equality in the United States
Arthur S. Leonard, prepared for delivery at Cornell CUGALA Reunion, June 7, 2014.

First, a chronology of some important events since Windsor, which shows the extraordinary progress we’ve had in just under a year:

U.S. v. Windsor and Hollingsworth v. Perry decisions were announced on June 26, 2013.

June 28 – 9th Circuit lifted its stay in the Prop 8 case and same-sex couples resumed marrying in California.

July 1 – First decision to cite Windsor was issued: a marriage equality case pending in U.S. District Court in Michigan, court refusing to dismiss the case.

Within weeks of Windsor, the Obama administration announced that the federal government would generally use the “place of celebration” rule to determine whether to recognize same-sex marriages, which meant they would be recognized nationwide for most purposes, regardless of local law. (Major exception: Social Security)

July 17 – Board of Immigration Appeals held “place of celebration” rule would be used in immigration cases, extending recognition to the marriage of a same-sex binational couple.

July-August – County clerks and trial judges in New Mexico staged a rebellion, as marriage equality slowly spread across the state based on local decisions, eventually reaching 18 counties. N.M. clerks association petitioned the state Supreme Court to address the issue, which it agreed to do.

July 22 – US District Court in Ohio, citing Windsor, issued a restraining order requiring Ohio to recognize a same-sex marriage contracted out of state as one spouse lay dying, for purposes of death certificate and surviving spouse status.

July 29 – US District Court in Pennsylvania, citing Windsor, ruled that a surviving same-sex spouse would be entitled to inherit retirement proceeds under an ERISA-regulated employee benefits plan, since “spouse” under ERISA must include same-sex spouses, and ERISA provides spousal entitlement to inherit pension/survivor benefits

September 3 – Defense Department announced that state National Guard units must provide benefits to same-sex spouses of their members – initial resistance by some individual states eventually collapsed by December

September 27 – New Jersey Superior Court granted judgment to plaintiffs in marriage equality case; in light of federal recognition under Windsor, state had no rational basis to deny marriage once it had legislated for civil unions

September 27 – Illinois Circuit court denied county clerk’s motion to dismiss marriage equality case

October 16 – Oregon Attorney General announced that in light of Windsor the state would recognize same-sex marriages from other jurisdictions. [Logic: Windsor is a marriage-recognition case, holding that federal government had no legitimate reason not to treat legally-valid same-sex and different-sex marriages the same; similarly, Oregon would have no reason for differential treatment]

October 18 – New Jersey Supreme Court unanimously refused to stay marriage equality decision. Governor Christie dropped the state’s appeal, allowing the decision to go into effect on October 21

November 5 – Illinois legislature approved marriage equality law, to go into effect June 1, 2014. Combination of Windsor and Superior Court’s refusal to dismiss pending marriage equality cases undoubtedly helped to produce the necessary majority.

November 12 – Hawaii legislature approved marriage equality law, to go into effect December 2. Special session called by Governor Abercrombie after he concluded that Windsor meant Hawaii would lose in 9th Circuit review of marriage equality case; Abercrombie called special session after legislative leaders assured him they could obtain majority support for his proposed marriage equality bill.

November 25 – Federal district court orders Cook County Clerk to issue marriage license to same-sex couple due to medical emergency, eventually leading to partial breakdown of delay to implementation of new marriage equality law as another federal court on December 10 requires clerk to issue licenses to any couple with a medical emergency and on February 21 federal court orders Cook County Clerk to issue licenses to any qualified same-sex couples regardless of medical emergencies.

December 19 – New Mexico Supreme Court unanimously rules for marriage equality, effective immediately.

December 20 – Federal district court in Utah rules that same-sex marriage ban is unconstitutional and refuses to stay ruling, so same-sex couples start marrying while state pursued quest for a stay from appellate courts. 1243 same-sex marriages performed.

December 23 – Federal district court in Ohio issues permanent injunction that required the state to recognize out-of-state same-sex marriages for purposes of death certificates

January 6 – U.S. Supreme Court stays Utah ruling without explanation, and Governor Herbert declares that marriages already contracted are “on hold” and not recognized by the state

January 14 – Federal district court in Oklahoma rules ban on same-sex marriage is unconstitutional, but stays ruling pending appeal in tight of Supreme Court’s Utah stay

January 21 – U.S. 9th Circuit Court of Appeals rules in juror selection case that sexual orientation discrimination claims are subject to “heightened scrutiny” after Windsor

January 29 – Federal district court in West Virginia denies motion to dismiss marriage equality case

February 10 – Attorney General Holder announces that Justice Department will recognize same-sex marriages under place of celebration rule for all purposes & Nevada governor and attorney general announce that in light of 9th ircuit’s “heightened scrutiny” ruling they will not provide a defense to Nevada’s same-sex marriage ban in pending 9th Circuit appeal

February 12 – Federal district court rules Kentucky ban on recognition of same-sex marriages is unconstitutional – decision stayed pending appeal

February 13 – Federal district court rules that Virginia’s ban on same-sex marriage is unconstitutional – decision stayed pending appeal

February 20 – Oregon Attorney General announces that in light of Windsor and 9th Circuit’s heightened scrutiny ruling, state will no longer defend marriage ban in pending lawsuit

February 26 – Federal district court rules that Texas’s ban on same-sex marriage is unconstitutional – decision stayed pending appeal

March 14 – Federal district court rules that Tennessee’s ban on recognition of same-sex marriages is unconstitutional – decision stayed pending appeal

March 21 – Federal district court rules after trial that Michigan’s ban on same-sex marriage is unconstitutional and that expert witnesses presented by the state are not credible – decision stayed by 6th Circuit pending appeal, 315 marriages before stay was granted.

April 10 – Federal district court orders Indiana to recognize a same-sex marriage of one of plaintiff couples in marriage equality suit due to medical emergency.

April 10 – 10th Circuit hears oral argument in Utah case

April 14 – Federal district court in Ohio rules that state must recognize out-of-state same-sex marriages for all purposes – stayed in part pending appeal

April 17 – 10th Circuit hears oral argument in Oklahoma case

May 9 – State Circuit court in Arkansas rules that ban on same-sex marriages is unconstitutional – eventually stayed pending appeal to Arkansas Supreme Court after about 500 couples marry

May 13 – 4th Circuit hears oral argument in Virginia case

May 13 – Federal magistrate judge in Idaho rules that state’s ban on same-sex marriage is unconstitutional, eventually stayed pending appeal by the 9th Circuit

May 19 – Federal district court rules that Oregon’s ban on same-sex marriage is unconstitutional. State doesn’t appeal and same-sex couples start marrying. National Organization for Marriage petitions U.S. Supreme Court to stay the ruling pending its attempt to appeal, after being turned down by the 9th Circuit. Supreme Court denies petition early in June.

May 19 – Federal district court rules that Utah must recognize the marriages that were performed prior to the Supreme Court stay – temporary stay pending appeal, 10th Circuit extended the temporary stay while considering the state’s appeal.

May 20 – Federal district court rules that Pennsylvania’s ban on same-sex marriage is unconstitutional. State doesn’t appeal and same-sex couples start marrying.

June 1 – Illinois marriage equality law goes into effect state-wide.

June 6 – Federal district court rules that Wisconsin ban on same-sex marriage is unconstitutional. Although court did not issue an injunction, and gave parties several weeks for submissions on scope of proposed injunction, delaying ruling on state’s motion for a stay pending appeal, county clerks in Milwaukee and Madison began issuing marriage licenses and about 130 couples married the same day the decision was released while state sought an emergency stay from the trial court.

June 6 – With filing of lawsuit in North Dakota, every state that still bans same-sex marriage was facing a lawsuit either on right to marry, recognition, or both.

As of June 7 – Same-sex couples could marry in 20 states and D.C., with over 45% of the nation’s population. A majority of same-sex couples lived in states where they could marry. Lawsuits were on file challenging same-sex marriage bans or refusals of recognition in every state that maintained such bans.


What the Court said in Windsor: The Court did not expressly state that same-sex marriage is a fundamental right or that sexual orientation discrimination requires heightened scrutiny, or that states are required to let same-sex couples marry or to recognize same-sex marriages.

The Court did say that the right to marry is very important in terms of legal rights and social status and it appeared to put the burden on the government to articulate policy justifications for refusing to extend the same recognition to state-sanctioned same-sex marriages that it does to different-sex marriages. The Court found that this burden had not been satisfied by any of the arguments that had been presented, without expressly addressing or analyzing any of those arguments. The Court explicitly premised this analysis entirely on the 5th Amendment, primarily emphasizing due process of law (protection for individual liberty) and also noting the equal protection requirements of the 5th Amendment.

Is this “heightened scrutiny” for sexual orientation discrimination? A 9th Circuit 3-judge panel said yes in SmithKline Beecham v. Abbott Laboratories, the juror selection case. One judge of the 9th Circuit asked the court to poll its members to consider rehearing by a larger panel of judges, but the court had not announced the result of that poll as of June 7, although it appears likely that this request was denied, since the court did announce that it would hear arguments in September in appeals from the Idaho and Nevada marriage cases. Other circuits are about to weigh in as a result of marriage equality arguments held in the 4th and 10th Circuits, with arguments yet to be scheduled on some other appeals in other courts.

Long-term effect of Windsor:

What is the long-term doctrinal effect of U.S. v. Windsor? Particularly:

(1) Does it dictate any particular result in lawsuits under the 14th Amendment against states that ban same-sex marriage?

(2) Does it mean that in cases where government policies are challenged as discriminating based on sexual orientation and/or gender identity, courts should use heightened scrutiny to decide the result? Heightened scrutiny presumes that the challenged law is unconstitutional and puts the burden on the government to show that it substantially advances an important state interest.

The marriage equality question: Beginning in September 2013 and continuing to date, federal district judges and state trial judges have decided that a state ban either on allowing or recognizing same-sex marriages violates the 14th Amendment.

They don’t all use the same analytical approach to get there, and most of them do not rely on “heightened scrutiny” to get there, although many judges discuss it.

1. Recognition cases, beginning in Ohio in July – Obergefell v. Wymyslo – The district court was asked for emergency relief by a same-sex couple that had flown to Maryland to marry, as one of the spouses was fatally ill. The court ordered Ohio to recognize the marriage for purposes of death certificate and rights of the surviving spouse. Significantly, the court did not mention Sec. 2 of DOMA, which purports to excuse states from any constitutional duty to afford full faith and credit to same-sex marriages contracted in other states. The court relied entirely on the 14th Amendment Equal Protection Clause, finding a constitutional requirement for states to treat same-sex and different-sex marriages the same for purposes of recognizing out-of-state marriages. On this view, Windsor was a marriage recognition case, holding that none of the policy arguments made in support of Sec. 3 of DOMA justified Congress in treating same-sex marriages differently from different-sex marriages. The Ohio court found that the same policy arguments made by the states were equally unavailing in this context. Unlike the Supreme Court in Windsor, the federal courts deciding marriage recognition cases have to greater or lesser extent actually discussed the various policy arguments and dismissed them.

2. Right to marriage cases, beginning in New Jersey and New Mexico in the state courts, then moving to the federal courts beginning in Utah. The state court rulings were grounded in state constitutional law, but were clearly influenced by the reasoning of Windsor, and the federal court ruling in Utah relied heavily on Windsor. A trend of quoting from Justice Scalia’s dissents in Windsor and Lawrence v. Texas quickly emerged. Scalia had predicted that these Supreme Court rulings would open the door to same-sex marriage claims, and even did some of the work for plaintiffs by contending that various arguments that had traditionally been made against same-sex marriage would no longer suffice.

For example: Moral disapproval was disfavored by the Supreme Court as a justification for sodomy laws or federal non-recognition of state same-sex marriages. Scalia helped things along by saying the arguments about “preserving or defending traditional marriage” were merely a polite way of invoking moral disapproval. Thus, states that argue that they are entitled to preserve the traditional understanding of marriage are not persuading the judges.

Procreation arguments were effectively dismissed by Scalia in his Lawrence dissent when he pointed out that the states do not prohibit the sterile, aged or infirm from marrying.

In Windsor, Scalia’s dissent rejected Chief Justice Roberts’ contention (in his dissent) that the majority opinion was about federalism. Roberts had argued that Windsor was about recognizing that the states have the primary authority to define marriage, and the federal government should ordinarily defer to the states on that question. But Scalia took Justice Kennedy at his word, when Kennedy said that the opinion was grounded in the 5th Amendment Due Process Clause (which incorporates Equal Protection). Scalia lifted key language from Kennedy’s opinion and edited it to show how the same analysis could be used to strike down state bans on same-sex marriage. Scalia wrote the playbook, and many lower court judges picked it up.

The doctrinal paths to marriage equality:

Substantive due process – States argue that plaintiffs are seeking a new federal right of “same-sex marriage” with no roots in constitutional text or tradition. Courts have rejected the argument, citing Justice Kennedy’s criticism of Bowers v. Hardwick, the 1986 sodomy law decision, as having improperly framed the question as a “claimed right of homosexuals to engage in sodomy.”

The cases since Windsor that have relied on Due Process have said this is about “the right to marry” as an individual right available to all in a meaningful way with a mutually agreed partner regardless of sex. Because of the signal importance of this right within our society, it could be deemed a fundamental right, which would require the government to show a compelling interest to exclude gay people, but the courts generally have felt it unnecessary to apply strict scrutiny because, taking their cue from Windsor, they find that none of the arguments that have been advanced against this application of the right are valid.

Equal Protection – Some of the courts have pointed out that any categorical discrimination with respect to a fundamental right invokes strict scrutiny, the right to marry is a fundamental right, so the same-sex marriage bans would fall because the states could not advance a compelling reason to exclude gay people from this fundamental right. Thus there would be no need for the court to address the question of how they should decide sexual orientation discrimination claims. However, the courts have almost all felt it necessary to engage in the alternative class-based discrimination analysis.

Sex discrimination – The courts have split over whether the ban on same-sex marriage is a form of sex discrimination that would invoke heightened scrutiny. This argument was adopted by the Hawaii Supreme Court in 1993 in Baehr v. Lewin, ruling under a state equal rights amendment, and it was picked up in some prominent academic quarters, most strongly in the 1990s by Sylvia Law of NYU and Andrew Koppelman of Northwestern University, in law review articles, books, and amicus briefs. Some of the recent decisions have echoed the view, but most have rejected it, finding that the bans on same-sex marriage are not intended to discriminate against men or against women as such. If a court accepts the sex discrimination theory, that leads to heightened scrutiny and easily invalidates the ban.

Sexual orientation discrimination – This is the most highly contested point. Most lower federal courts in the past have found that sexual orientation is not a suspect classification because

(1) the Supreme Court has never said it is and appeared to decide Romer v. Evans and Lawrence v. Texas using rationality review,
(2) the gay rights movement has shown the ability to get governments to respond to its concerns through legislation, and thus is not politically powerless,
(3) scientific questions remain about immutability, making sexual orientation unlike the suspect class of race or the somewhat suspect class of sex.

The minority of lower federal courts that have found sexual orientation to be a suspect classification have focused on (1) the well-documented history of anti-gay discrimination by government and society, including expressly anti-gay laws, (2) the growing scientific support for a genetic component to sexual orientation and a belief that sexual orientation is a deep-seated trait, largely impervious to intentional change and central to individual identity, (3) the general view that sexual orientation is usually irrelevant to any legitimate government interest.

In the gay rights decisions he has written for the Supreme Court, Justice Kennedy has not specifically addressed these questions. Instead, he has focused on the problem of animus. To Kennedy, if a discriminatory policy is adopted without any legitimate policy justification, the legislature most have been motivated by animus. This really boils down to finding that the legislature decide to discriminate against gay people because legislatures thought it politically advantageous for them to do so due to the unpopularity of gay people with most of the public, or because of an anti-gay bias grounded in religious beliefs and/or moral disapproval. These strike the Supreme Court majority as illegitimate bases for discriminatory legislation. The more important the deprivation imposed by the statute, the more concerned the Court becomes that it was enacted from animus instead of a legitimate policy reason.
Once the Court decided to reject history and tradition as a support for legislation that impairs the dignity of the individual, the game was over.

In the trilogy of decisions written by Kennedy, this theme recurs again and again. In Evans v. Romer in 1996, the Court struck down a measure that it found was discrimination for the sake of discrimination with no legitimate justification, a clear violation of the 14th Amendment. In Lawrence v. Texas in 2003, the Court struck down a state criminal sodomy statute that prohibited same-sex couples from engaging in the same sexual activity that was permitted for different sex couples, an obvious equality problem, but the Court premised the decision NOT on equality but on impairment of human dignity and autonomy in violation of the guarantee of liberty in the 14th Amendment. In U.S. v. Windsor in 2013, striking down the federal government’s refusal to recognize same-sex marriages that were allowed by states, the Court emphasized that the state had conferred dignity on married same-sex couples by allowing them to marry, and the federal government’s refusal to recognize such marriages impaired the dignity of the married couples, denying “equal liberty.” None of the justifications articulated in the legislative history or in the briefs filed with the Court were seen as adequate to support a law that impaired individual dignity in this way.

[In light of my analysis of the Court’s decision in Windsor, it should be clear that I think the 9th Circuit 3-judge panel in SmithKline Beecham v. Abbott Laboratories was mistaken in its conclusion that Windsor requires sexual orientation discrimination claims to be evaluated using heightened scrutiny. If the Court was using heightened scrutiny in Windsor, it was because of the intersection of due process and equal protection concerns, in which the importance of the right to marry was a crucial factor. I do think that the 9th Circuit’s prior cases rejecting heightened scrutiny for sexual orientation claims are wrong, because I agree with the federal district courts that, having analyzed the heightened scrutiny factors, concluded that sexual orientation claims are entitled to heightened scrutiny. But a 3-judge panel of the 9th Circuit was not free to reach such a conclusion in light of prior circuit cases; only an en banc panel could reject prior circuit precedent and engaged in the factor-analysis leading to a heightened scrutiny conclusion, in my opinion.]

Romer and Lawrence were 6-3 decisions, but Windsor was a 5-4 decision, and all the justices in the minority, regardless of which dissenting opinions they signed, seemed to agree that Congress had sufficient justification for refusing to recognize same-sex marriages, even when the states had done so. Thus, Windsor is a vulnerable precedent, should change come to the Court. The current Supreme Court conservative majority has shown little regard for precedent in Constitutional Law. Thus, the membership of the Court when the marriage equality question gets to it is crucial.

At present, it appears likely that the question will get to them next term. One or more of the courts of appeals will rule on marriage equality cases in the next few months. If such a ruling orders a state to allow same-sex couples to marry, it is highly likely that the Court will grant the state’s petition to review that decision. Assuming, for sake of argument, that the opinions of more than a dozen lower court judges reasonably reflect the views of court of appeals judges, that result seems likely. This would mean that a marriage equality case would most likely be argued during the Supreme Court’s 2014-15 term, with a decision coming sometime in the spring of 2015. If the membership of the Court remains what it is today, or the only change is a new Obama appointee to replace one of the current justices, then it is likely that we will have a national marriage equality precedent next year.

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