Leslie A. Farber
So What’s With All These Recent Court Decisions Striking Down State Laws That Had Prevented Same Sex
In the past 7 months or so, judges in federal and state courts in 7 different states have stricken down state laws and state constitutional provisions either bar same sex marriage or that state’s recognition of same sex marriages performed elsewhere (these state laws or state constitutional provisions have been known as mini-DOMAs). This has happened in the courts in the following states since last July: Ohio (July 22, 2013), New Jersey (Sept. 27, 2013), New Mexico (Dec. 9, 2013), Utah (Dec. 20, 2013), Oklahoma (Jan. 14. 2014), Kentucky (Feb. 12, 2014), and now Virginia (Feb. 13, 2014). All of these court decision have been “stayed” (on hold) pending the outcome of appeals. There also are similar, pending lawsuits in Alabama, Alaska, Arizona, Arkansas, Florida, Idaho, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, Oregon, Pennsylvania, Texas, West Virginia, and Wisconsin.
The fact that all of these court decisions have happened since July 2013 is not a coincidence. That’s because, on June 26, 2013, the United States Supreme Court decided in the case of United States vs. Windsor that the part (Section 3)of the federal Defense of Marriage Act (DOMA), which prohibited the federal government from recognizing same sex marriages, violates various provisions of the United States Constitution and its amendments, and therefore, was unconstitutional.
The Windsor decision was based in large part on the due process and equal protection clauses of the 5th Amendment to the U.S. Constitution. Although the Windsor decision requires the federal government to recognize marriages that are valid in the state where the marriages reside (or in some cases where the marriage was performed, which affects different federal rights and obligations), there also is plenty of fuel in the language of the written opinion for marriage equality advocates to argue that any law which deprives same sex couples of the same rights as different sex couples is a denial of due process and equal protection of the laws. The denial of equal protection and due process are among the bases of the court decisions since Windsor last June and the foundation for most of the cases that are pending right now.
Perhaps one of the ironies of all this is that Supreme Court Justice Antonin Scalia, who dissented from the Windsor majority decision and has been widely criticized on the left, accurately predicted this outcome twice, even though he has argued against it in his own convoluted way.