As the national spotlight on marriage grows ever brighter and polling continues to show Americans moving inexorably in the direction of supporting equality for same-sex couples, there are over 70 marriage equality cases working their way through the judicial system across the country. Currently thirteen cases from ten states are pending before five federal appeals courts.
Five cases out of Utah, Oklahoma, Virginia, Indiana and Wisconsin have already been decided by federal appeals courts. The Tenth Circuit ruled in the Utah and Oklahoma cases that bans on marriage equality are unconstitutional, and the Fourth Circuit ruled the same way in the Virginia case. And the Seventh Circuit struck down Indiana and Wisconsin's marriage bans. Two states – Oregon and Pennsylvania – declined to appeal federal district court rulings that struck down their marriage bans as unconstitutional, making them the 18th and 19th states with marriage equality. In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in court.
Same-sex couples can legally marry in 19 states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman. Presently there are marriage cases in state and/or federal courts in 30 of the 31 states that ban marriage equality.
Mark Your Calendars
So far five federal appeals courts are presiding over marriage equality cases over the coming weeks and months.
Cases already decided by federal appeals courts and appealed to the Supreme Court of the United States:
- Bostic v. Rainey, Virginia [Fourth Circuit ruled marriage ban unconstitutional]
- Kitchen v. Herberg, Utah [Tenth Circuit ruled marriage ban unconstitutional]
- Bishop v. United States, Oklahoma [Tenth Circuit ruled marriage ban unconstitutional]
- Baskin v. Bogan, Indiana [Seventh Circuit ruled marriage ban unconstitutional]
- Wolf v. Walker, Wisconsin [Seventh Circuit ruled marriage ban unconstitutional]
Cases pending before federal appeals courts:
- DeLeon v. Perry, Texas [Argument date at the Fifth Circuit not set]
- Robicheaux v. Caldwell, Louisiana [Argument date at the Fifth Circuit not set]
- Tanco v. Haslam, Tennessee [Arguments at the Sixth Circuit held August 6]
- Bourke vs. Beshear, Kentucky [Arguments at the Sixth Circuit held August 6]
- Obergefell v. Kasich, Ohio [Arguments at the Sixth Circuit held August 6]
- Henry v. Himes, Ohio [Arguments at the Sixth Circuit held August 6]
- DeBoer v. Snyder, Michigan [Arguments at the Sixth Circuit held August 6]
- Sevcik v. Sandoval, Nevada [Argument at the Ninth Circuit held September 8]
- Latta v. Otter, Idaho [Argument at the Ninth Circuit held September 8]
- Jackson v. Abercrombie, Hawaii [Argument at the Ninth Circuit held September 8]
- Burns v. Hickenlooper, Colorado [Argument date at the Tenth Circuit not set]
- Brenner v. Scott, Florida [Argument date at the Eleventh Circuit not set]
The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction.
The Tenth Circuit was the first appeals court to hear argument on marriage equality cases since the Supreme Court's historic marriage rulings last year. On Thursday, April 10th – barely a year after being filed in federal court in Utah – Kitchen v. Herbert was heard by a three-judge panel that was asked to consider a judge’s December ruling that struck down the state’s ban on marriage equality.
One week later on Thursday, April 17, the judges presided over a similar case out of Oklahoma, Bishop v. United States, which challenges that state’s marriage ban after a federal judge ruled it unconstitutional in January of this year.
On Wednesday, June 25, the Tenth Circuit ruled in favor of the plaintiffs in the Utah Case, striking down the state's ban on marrige equality. In a 2-1 decision authored by Judge Lucero on behalf of a three-judge panel, the court agreed with the low court’s ruling in which Judge Shelby wrote that the ban denies “[Utah’s] gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason.” Then on July 18, the Tenth Circuit issued its second ruling, this time in the Oklahoma case, again striking down state marriage bans. Utah officials have bypassed an en banc appeal to the Tenth Circuit, and instead have asked the U.S. Supreme Court to hear an appeal of the case challenging the state’s ban on marriage for same-sex couples. Oklahoma officials have indicated they will do the same.
On Tuesday, May 13, less than a year after being filed in federal district court and just months after a ruling by that court, a challenge to Virginia's ban on marriage equality was heard by a three-judge panel of the United States Court of Appeals for the Fourth Circuit. Bostic v. Schaefer (formerly Bostic v. Rainey) challenges Virginia’s constitutional amendment forbidding the state from performing or recognizing the marriages of same-sex couples. A few months later on July 28, the Fourth Circuit upheld the district court decision, and ruled bans on marriage equality unconstitutional.
The Supreme Court is under no obligation as to which case or cases – if any – it choses to hear on appeal. However, Justice Ruth Bader Ginsburg recently told reporters the Court will not “duck” a marriage case. "I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."
Each federal court decision striking down a state marriage ban has pointed to the Supreme Court’s equal protection ruling in Windsor, with many judges directly quoting Justice Kennedy’s opinion for the majority. Among the most quoted passages from the Windsor ruling is a line in which Kennedy writes that maintaining separate tiers of relationships “humiliates thousands of children now being raised by same-sex couples.”
Thousands of same-sex couples in Utah, Michigan, Arkansas and Wisconsin have wed after federal and state courts struck down their marriage bans, although an appeals process is underway in each state. HRC has asked Attorney General Eric Holder to ensure the couples that have married in Arkansas and Wisconsin are recognized as married by the federal government, just as he did for couples that wed in Utah and Michigan.
WINDSOR AND PERRY
Proposition 8 and DOMA were among the most visible symbols of anti-LGBT discrimination around the country and around the world.
In United States v. Windsor, Edie Windsor, represented by the ACLU and Roberta Kaplan of the law firm Paul Weiss, challenged section 3 of DOMA which required her to pay $363,000 in estate taxes after her partner and spouse of more than 40 years passed away. If Edie had been married to a man, instead of a woman, it is undisputed that her estate tax bill would have been zero. Last week the Justice Department released a report detailing the Obama administration’s broad implementation of the Windsor ruling, which allowed the federal government to recognize the legal marriages of same-sex couples for the purposes of crucial federal benefits and programs. Under the leadership of President Obama and Attorney General Eric Holder, the breadth with which this administration has implemented the Windsor decision constitutes the single largest conferral of rights to LGBT people in history.
Hollingsworth v. Perry, previously known as Perry v. Schwarzenegger and Perry v. Brown, was filed on behalf of two same-sex couples in federal district court in California in May 2009. Under the sponsorship of the American Foundation for Equality Rights – co-founded by HRC President Chad Griffin – and represented by conservative attorney Ted Olson and liberal attorney David Boies, the plaintiffs achieved victories in both district court and the U.S. Court of Appeals for the Ninth Circuit, both of which ruled Proposition 8 unconstitutional.
At the time the Perry case was filed in the U.S. District Court for the Northern District of California in the spring of 2009, only 40 percent of Americans supported marriage equality, according to Gallup. A year later in 2010, the year Windsor was filed in the United States District Court for the Southern District of New York, support had risen to 44 percent. Today, Gallup puts support for marriage equality at 55 percent – an astonishing 15 points increase in just 5 years – with other polls showing support at even higher margins.
And support for same-sex marriage rights continues to grow in virtually every demographic group. According to ABC News / Washington Post, 77 percent of adults under age 30 favor marriage equality. 40 percent of Republicans – an all-time high and jump of 16 points in under two years – now support marriage for gay and lesbian couples, while the number of Catholics supporting marriage has grown to 62 percent, according to the New York Times. These numbers continue to grow, with no indication that support will slow down.
In June of 2014 released the results of a survey of 1,200 registered voters conducted by Republican pollster Alex Lundry of TargetPoint Consulting, which found that the number of Americans strongly opposed to national marriage equality has dipped to 28 percent. When asked what they would do if the U.S. Supreme Court struck down discriminatory marriage bans across the country, only 3 percent of marriage equality opponents mentioned that they would protest the decision in any form. The poll results also serve as a crystal ball to peer into the future of the Republican Party. While only 29 percent of Republicans 41 and older support marriage equality, an astonishing 59 percent of those 40 years old and younger are in favor of same-sex marriage.