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, over 70 marriage equality cases have been filed and are working their way through the judicial system across the country. Here is where we stand following recent action from the U.S. Supreme Court:
The Supreme Court’s order on October 6th, which denied cert to all marriage equality cases pending review, immediately extended marriage equality to states where the cases were filed: Virginia, Indiana, Wisconsin, Oklahoma and Utah. The action has paved the way for marriage equality in the remaining Fourth and Tenth Circuit states: West Virginia, North Carolina and Colorado now allow marriage for same-sex couples; South Carolina and Kansas are not far behind.
On November 6, the Sixth Circuit upheld bans on marriage equality in all four of the states in its jurisdiction – Kentucky, Tennessee, Michigan and Ohio. Following the court’s decision, plaintiffs in all four states filed petitions for cert with the U.S. Supreme Court and the cases are currently pending before the court.
As of this moment, same-sex couples can legally marry in 33 states – with more likely to join in the coming hours, days and weeks as federal appellate rulings start to become enforced in several more states within the circuits’ jurisdiction. In 2004, Massachusetts became the first to embrace marriage equality; a decade later, 70 percent of America has followed Massachusetts’ lead.
There are marriage equality cases from three states pending before two federal appeals courts right now. Four states saw marriage bans upheld by the Sixth Circuit and lawyers in the cases are planning on appealing the ruling to the U.S. Supreme Court.
Cases pending before the Supreme Court of the United States
- Tanco v. Haslam, Tennessee [cert petition, filed by National Center for Lesbian Rights and private attorneys]
- Love v. Beshear, Kentucky [cert petition, filed by private attorneys]
- Obergefell v. Hodges and Henry v. Hodges, Ohio [cert petition, filed by Lambda Legal, ACLU and private attorneys]
- DeBoer v. Snyder, Michigan [cert petition, filed by GLAD’s Mary Bonauto and private attorneys]
The following cases were decided by federal appeals courts and appealed to the U.S. Supreme Court. After the Supreme Court declined to hear any of the cases, it in turn rendered the appellate court judgments the “law of the land” in each of the relevant circuit court jurisdictions:
- Bostic v. Schaefer, Virginia [Fourth Circuit ruled marriage ban unconstitutional]
- Kitchen v. Herbert, 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 set for January 5, 2015]
- Robicheaux v. Caldwell, Louisiana [Argument date at the Fifth Circuit set for January 5, 2015]
- Brenner v. Scott, Florida [Argument date at the Eleventh Circuit not set]
A Timeline of Events
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 marriage 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. Both Utah and Oklahoma officials bypassed an en banc appeal to the Tenth Circuit, and instead asked the U.S. Supreme Court to hear an appeal of their respective cases challenging the state ban on marriage for same-sex couples.
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) challenged 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.
On September 4th, 2014, the Seventh Circuit Court of Appeals ruled unconstitutional Wisconsin’s and Indiana’s ban on marriage for same-sex couples in Walker v. Wolf and Baskin v. Bogan respectively, just nine days after the two cases were heard by the appellate court. The Wisconsin case was brought by the ACLU and private attorneys, and the Indiana case, which is a consolidation of three cases (Baskin, Fuji v. Dept. of Revenue and Lee v. Pence) was brought by Lambda Legal, the ACLU and private attorneys. Judge Richard Posner -- whose line of questioning at oral arguments left state attorneys stunned and grasping for straws -- wrote the decision for the court: “The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.” The cases were submitted to the U.S. Supreme Court for appeal, but were denied cert on October 6th, paving the way for marriage equality to become the “law of the land” in Wisconsin and Indiana, giving the entire Seventh Circuit marriage equality, as same-sex couples could already marry in Illinois.
On October 7, one day after the Supreme Court denied cert to all of the marriages cases pending review, the Ninth Circuit Court of Appeals ruled unconstitutional bans on marriage rights for same-sex couples in both Nevada and Idaho. This decision has brought marriage equality to two more Ninth Circuit states (Arizona and Alaska) and Montana, the last state in the Ninth Circuit without marriage rights for same-sex couples, will likely follow suit. The Nevada case, Sevcik v. Sandoval, was brought by Lambda Legal and private attorneys. The Idaho case, Latta v. Otter, was brought by the National Center for Lesbian Rights and private attorneys. Same-sex couples began applying for marriage licenses in Nevada on October 9 and in Idaho on October 15 after the U.S. Supreme Court lifted a temporary stay that had been placed on unions in the state.
On November 6, the Sixth Circuit broke a string of victories for equality by upholding four state marriage bans in Ohio, Michigan, Kentucky, and Tennessee. The long-awaited decision was handed down by Judge Jeffrey Sutton, who - as expected - wrote the opinion for the 2-1 majority. Sutton cited the 1972 SCOTUS case Baker v. Nelson -- which dismissed a same-sex couple’s claim that they had a right to marriage -- a dated case which other federal courts deemed irrelevant after the Supreme Court ruled against DOMA last year in Windsor. The decision has created what is known as a “circuit split” -- increasing the likelihood that the Supreme Court will take up and ultimately decide the constitutionality of the remaining marriage bans across the nation.
Following the Sixth Circuit’s ruling, attorneys in all of the cases have elected to skip an en banc rehearing with the Sixth Circuit, and appealed directly to the U.S. Supreme Court.
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.”
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.