United States v. Windsor, the Supreme Court’s decision last June striking the unconstitutional Defense of Marriage Act (DOMA), is, in parts, a baffling opinion. In the lead up to this decision, several justices who voted to strike DOMA strongly hinted that they prefer an incremental approach to a sweeping decision extending marriage equality to all fifty states. The result is a decision that explicitly reserves the question of whether states can engage in marriage discrimination for another day, while simultaneously relying largely on an equality rationale that should apply equally to states and the federal government.
In their effort to produce an opinion that struck DOMA while ostensibly putting off the question of what should happen in the states, the Court produced an opinion in Windsor that includes just enough states’ rights language to leave anti-gay litigants with the impression that their cause is not completely doomed. As one federal judge in Michigan explained in an order explaining how both supporters and opponents of marriage equality would prefer to read Windsor, defenders of discrimination will “no doubt cite to the relevant paragraphs of [Windsor‘s] majority opinion espousing the state’s ‘historic and essential authority to define the marital relation.'”
Such anti-gay litigants probably shouldn’t get their hopes up, however. With Thursday night’s decision striking down marriage discrimination in Virginia, five federal courts have now ruled in favor of marriage equality at the state level. Zero have upheld discrimination.
- Utah: In the first of the five decisions siding with marriage equality, Judge Robert Shelby struck down Utah’s ban on same-sex marriages, holding that “[t]he Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry and the right to have that marriage recognized by their government.” He dismissed the suggestion that states rights can somehow trump these fundamental rights — “the Fourteenth Amendment requires that individual rights take precedence over states’ rights where these two interests are in conflict.”
- Oklahoma: Less than a month after the Utah decision, Judge Terence Kern sided with marriage equality in Oklahoma. “Equal protection is at the very heart of our legal system and central to our consent to be governed,” Kern wrote, “It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights.”
- Ohio: An Ohio case that began with a man in the terminal stages of Lou Gehrig’s disease who wants to die knowing that his own death certificate will list his husband as his “surviving spouse,” led to Judge Timothy Black holding that Ohio may not discriminate against same-sex couples who legally marry in another state, at least with respect to death certificates. Although Judge Black’s opinion is fairly narrow in scope, his opinion strongly hints at broader implications — “once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution.”
- Kentucky: On Wednesday, Judge John G. Heyburn held that Kentucky must recognize same-sex marriages performed in other states. Notably, Judge Heyburn is a George H.W. Bush appointee who once served as Special Counsel to future Senate Minority Leader Mitch McConnell (R-KY).
- Virginia: Finally, Judge Arenda Wright Allen wrote the most recent marriage equality decision — “We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.