The States, Same-Sex Marriage, and the Next Wave of the US Marriage Equality Battle

Roughly half a year has passed since the United States Supreme Court’s landmark ruling in United States v Windsor, 570 US (2013), but it is increasingly clear that the marriage equality battle in the courts is far from over. On December 20, Judge Robert Shelby of the Utah Federal Court struck down the state’s prohibition on gay marriage as a violation of the equal protection and due process clauses of the Fourteenth Amendment. On January 13, US Senior District Judge Terence Kern struck down Oklahoma’s legislative ban on gay marriage on the same grounds. Both decisions make it clear that the next phase of the marriage equality battle will occur at the state level and both make it almost inevitable that the Supreme Court will have to finally answer the question at the heart of this civil rights issue (that it so deftly sidestepped in Hollingsworth v Perry, 570 US (2013))—whether bans on same-sex marriage, either at the state or federal level, are per se unconstitutional.

In United States v Windsor, the Court struck down key provisions of the federal Defense of Marriage Act (DOMA), thereby allowing for the federal recognition of same-sex marriages that were valid under various state laws and unlocking numerous benefits previously only available to heterosexual couples (see here for a more in-depth look at the case and its reasoning). While this was a monumental victory for married same-sex couples, it is important to note that the Court did not recognize same-sex marriage as a constitutional right. Much of Justice Kennedy’s reasoning rested on federalist principles—specifically, the fact that under the Constitution, the states have the primary authority to define marriage. Further, as I pointed out in September, the decision was doctrinally vague, and Justice Kennedy’s soaring rhetoric did not make it clear how the marriage equality issue would fit into the framework of equal protection jurisprudence.

Similarly, while Hollingsworth v Perry effectively demolished Proposition 8, California’s ban on same-sex marriage, the case was decided on one of Chief Justice John Roberts’ favourite levers of judicial restraint—standing. After Proposition 8 was struck down by the California District Court, the California state government did not seek leave for appeal; instead, interveners continued the appeal up through to the Supreme Court. Since these petitioners were deemed not to have suffered any injury as a result of the law’s invalidation, the Court was able to uphold the District Court’s decision without ever considering Proposition 8’s constitutionality.

The lower courts in Utah and Oklahoma are forcing the issue. In the Utah case, the plaintiffs pointed to the spirit of United States v Windsor and Justice Kennedy’s emphasis on equality and dignity, while Utah argued that the decision stood only for the proposition that the federal government could not intrude on the state’s right not to allow same-sex marriage. Judge Shelby thereby struck down the state’s ban on same-sex marriage and, importantly, did not stay the decision pending review by appellate courts. This, said Judge Shelby, was because Utah never asked for a stay of his ruling (Utah similarly failed to make timely application to the 10th Circuit for such a stay). This sent roughly 1,300 same-sex couples rushing to get married, until the Supreme Court ordered a stay pending the decision’s review by the 10th Circuit. The unsigned, six-line judgment does not consider the merits of the case.

Utah Attorney General Sean Reyes has stated that Utah will not recognize marriages performed between Judge Shelby’s ruling and the Supreme Court’s order to stay the decision. Complicating matters, however, is Attorney General Eric Holder’s statement that the federal government will recognize these marriages under federal law: “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.” This means that these 1,300 or-so couples will be able to claim federal benefits on the same basis as validly married heterosexual couples. Holder’s decision explicitly rests on the Supreme Court’s decision in United States v Windsor, but the Attorney General did not clarify how the Justice Department is interpreting that decision. A possible rationale is that because the marriages were valid under state law at the time of their completion, the holding in Windsor requires the federal government to recognize them.

On January 13, Judge Kern of the Oklahoma District Court came to the same conclusion as had Judge Shelby—a statewide ban on same-sex marriage is “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a government benefit” (at 52). Judge Kern recognizes the fact that the Supreme Court never explicitly ruled on the constitutionality of such prohibitions but went on to state that “There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one” (at 66).

Persisting uncertainty regarding the constitutionality of same-sex marriage bans at the state level will likely lead to a split between two or more circuit courts. At this point, the Supreme Court will have no choice but to intervene. As evidenced by the lengthy briefs provided by both Utah litigants at the Supreme Court last week, the two sides are ready to make their respective cases. However, as the marriage equality issue becomes increasingly embedded in the equal protection architecture, and as nationwide attitudes continue to shift, it is difficult to conceive of the states bringing forth sufficient evidence of a legitimate government purpose in restricting marriage to heterosexual couples to justify the differential treatment of the historically persecuted minority group.