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DOMA’s demise creates pathway to overturning state bans on gay marriage

In the six months since the decision, the number of states allowing same-sex marriage has jumped from 12 to 18.
Thursday, December 26, 2013
Marriage equality supporters outside the U.S. Supreme Court in June 2013, waiting for decisions in cases involving California's Proposition 8 and the Defense of Marriage Act.

Paul Morigi, AP
Marriage equality supporters outside the U.S. Supreme Court in June 2013, waiting for decisions in cases involving California’s Proposition 8 and the Defense of Marriage Act.

Advocates on both sides of the gay marriage debate predicted that the U.S. Supreme Court ruling in June that overturned part of the federal Defense of Marriage Act would create a pathway for more challenges to state bans on same-sex marriage.

They were right.

In the six months since the decision, the number of states allowing same-sex marriage has jumped from 12 to 18, a trend that started before the high court ruling that’s been reinforced since.

Judges in New Mexico, Ohio and, most surprisingly, conservative, Mormon-heavy Utah all ruled in favor of same-sex marriage in just the past week.

Both Utah’s case and another in Nevada will next be heard by federal appeals courts, putting them on the path toward the high court. Ohio’s case, which recognized same-sex death certificates, also will likely be appealed.

The series of court decisions has many asking: When will the Supreme Court step in and settle the issue for good?

It may not be that simple.

The cases on the path to the Supreme Court now differ little from a case justices refused to hear in June, at the same time they made their landmark ruling on the federal law denying tax, health and other benefits to legally married same-sex couples.

That case, from California, hinged on a constitutional amendment defining marriage as between a man and a woman.

If the justices had acted, it would have struck down gay marriage prohibitions across the country.

Instead, the justices passed, relying instead on a technical legal argument to resolve the California case and clear the way for same-sex marriage in the state, which resumed at the end of June.

That convinces some legal scholars that the high court won’t take up the issue again so soon. In a way, they’ve already passed the buck to the states, some say, including language in their Defense of Marriage Act ruling saying it relegates same-sex marriages to second-class status, and “humiliates tens of thousands of children now being raised by same-sex couples.”

That language makes it clear state bans are ripe for challenge, said Andrew Koppelman, a professor of law and political science at Northwestern University.

Language from both Justice Anthony Kennedy’s majority opinion and Justice Antonin Scalia’s biting dissent have appeared prominently in subsequent court challenges and rulings, including in Utah and Ohio. A federal judge in Ohio ordered officials to recognize gay marriages on death certificates.

“The Supreme Court has given them ammunition to go there if that’s where they want to go,” Koppelman said.

Alongside state court decisions has come a shift in public sentiment about gay marriage. Only one-third of Americans oppose gay marriage, down from 45 percent in 2011, an AP-GfK October poll showed.

With Utah’s ban struck down, 28 states still have constitutional prohibitions on same-sex marriage. Another four states – Indiana, Pennsylvania, West Virginia and Wyoming – do not permit it through state laws.

Attorneys and proponents say this is the civil rights issue for the current generation, comparing the scenes of gay couples marrying at county clerks offices to blacks breaking racial barriers in the 1960s.

More state rulings in favor of gay marriage could be in the works in 2014. The thinking goes, if it can happen in ultra-conservative Utah, it can happen anywhere. Utah is home to The Church of Jesus Christ of Latter-day Saints, which still teaches its members homosexuality is a sin despite a softening of their rhetoric in recent years.

“The ruling has had a symbolic impact already,” Jon Davidson, director of Lambda Legal, which pursues litigation on LGBT issues nationwide. “It is recognition that the nation’s attitudes, from public to legislative to judicial, are changing very rapidly in all parts of the country.”

“And the opponents, many of them, are moving on,” said William Eskridge, a professor at Yale Law School. “We are not seeing the same kind of Armageddon rhetoric we saw in the 1990s.”

A federal judge in Michigan will hear testimony from experts in February before deciding whether to throw out the state’s constitutional ban on same-sex marriage. Two federal lawsuits in Virginia, including one being led by the same legal team that challenged California’s ban, are moving forward.

Eskridge disagrees with those who say the Supreme Court won’t act, predicting justices will get involved in the gay marriage dispute in the next year or two.

Different branches of the government are acting, he said – lawmakers, state courts, and federal courts – which could convince the justices to step in.

The long-term trend in favor of acceptance of same-sex marriage affects the courts. As each state’s same-sex marriage ban is struck down, it serves as a domino effect helping make the next legal challenge easier, said Jon Davidson, director of Lambda Lega l, which pursues litigation on LGBT issues nationwide. The Ohio ruling this week cited the Utah ruling from last week.

“You are going to see more federal courts do what just happened in Ohio and Utah,” Koppelman predicted.

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28 more reader comments:

  1. Doma died ! Homophobes cried ! Gays rejoiced !

    Posted on Thursday, December 26, 2013 at 10:13pm
  2. We allies rejoiced too. :)

    Replied on Thursday, December 26, 2013 at 10:56pm
  3. Good for the allies! Keep standing by us! We need each other!

    Replied on Friday, December 27, 2013 at 2:06am
  4. Let real Freedom Ring, not the far right lunacy...

    Replied on Friday, December 27, 2013 at 4:58am
  5. People should be able to get married no matter who they are.its thief right to

    Posted on Thursday, December 26, 2013 at 10:35pm
  6. LOL These so called pro-family are just covers for being a hate group. No study that is connected to one of these groups is valid. It gets proven over and over so don’t hold your breath on having any effect. the states will fall like dominoes.

    Posted on Thursday, December 26, 2013 at 10:42pm
  7. let’s keep the equality train going

    Posted on Thursday, December 26, 2013 at 10:43pm
  8. Family Research Council is a joke. Fundies don’t know how to do honest research. They start with the conclusion they want and look for things to support that. A backward approach at best. Not science.

    Posted on Thursday, December 26, 2013 at 10:49pm
  9. Every gay couple in every state that is being denied the civil constitutional right of civil marriage should sue, sue, sue, sue, sue.

    Posted on Thursday, December 26, 2013 at 10:51pm
  10. Hay Daniel ^^ your opinion is great and it is yours but your points that your trying to make are not going to change my mind on gay marriage and am sure others feel the same! So please I mean this Buzzzz Off! Thank you! DOMA for all 2014!

    Posted on Thursday, December 26, 2013 at 11:22pm
  11. Daniel Duane Konruff: the bottom line here is it is not your right to vote on others’ lives and choices. You live your life and mind your own business and leave the others trying to fight for what’s rightfully theirs alone. Okay? :) Now go on. Worry about yourself.

    Posted on Thursday, December 26, 2013 at 11:43pm
  12. I Hate Homophobia–Do you?

    Posted on Friday, December 27, 2013 at 12:12am
  13. I hate it too, can we pass it on and by all means , drink to it.

    Replied on Friday, December 27, 2013 at 2:04am
  14. Thanks for that....let's keep the equality train going....Same Love....Different Families....

    Replied on Friday, December 27, 2013 at 2:08am
  15. It’s about time & I never thought in a million years I would see this happen in the state of Utah. Now my granddaughter can marry her girlfriend when the time comes. LOVE IT!!!!

    Posted on Friday, December 27, 2013 at 12:37am
  16. Lets all give thanks to Edie WIndsor!

    Posted on Friday, December 27, 2013 at 3:17am
  17. Below are 17 House seats that need to be taken back from Crazy People, these House seats are not gerrymandered…

    States where President Obama won(17 states)
    DCCC Potential Targets
    CA-10 Jeff Denham (R–Atwater) R+1
    CA-21 David Valadao (R–Hanford) R+2
    CA-31 Gary Miller (R–Rancho Cucamonga) D+5
    CO-06 Mike Coffman (R–Aurora) D+1
    FL-13 Bill Young (R–Indian Shores) R+1
    FL-27 Ileana Ros-Lehtinen (R–Miami) R+2
    IA-03 Tom Latham (R–Clive) R+1
    MN-02 John Kline (R–Lakeville) R+2
    MN-03 Erik Paulsen (R–Eden Prairie) R+2
    NJ-02 Frank LoBiondo (R–Ventnor) EVEN
    NJ-03 Jon Runyan (R–Mount Laurel Township) R+2
    NV-03 Joe Heck (R–Henderson) EVEN
    NY-02 Peter T. King (R–Seaford) R+1
    NY-11 Michael Grimm (R–Staten Island) R+4
    NY-19 Chris Gibson (R–Kinderhook) D+1
    VA-02 Scott Rigell (R–Virginia Beach) R+2
    WA-08 Dave Reichert (R–Auburn) R+2

    We need to get bills like this and a raise in the minimum wage passed https://www.govtrack.us/congress/bills/113/hr1601
    VOTE as many Repubs out of office on Tuesday NOvember 4th, 2014 as possible to fix the USA…

    Posted on Friday, December 27, 2013 at 4:57am
  18. The Windsor decision certainly figured importantly in Judge Shelby’s decision about Utah’s marriage ban. It won’t be long before marriage equality comes to all 50 states and we finally become first-class citizens in our own country!

    Posted on Friday, December 27, 2013 at 9:05am
  19. Happy this happened but as a single dude that will likely be single forever (disability issue) it is so hard for me to get excited or give a shit as it is reported over and over. Yes fairness is winning cool. Buy having everyone’s relaxation ship and wedding shoved down my throat is getting pathetic. It isn’t news or celebration rather the gloating that is making me roll my eyes. Continue on as fairness is winning; I guess I can keep getting annoyed for equality.

    Posted on Friday, December 27, 2013 at 10:02am
  20. The South better watch out! lol

    Posted on Friday, December 27, 2013 at 2:20pm
  21. About time!

    Posted on Friday, December 27, 2013 at 3:57pm
  22. I am not homophobic however marriage is for a man and a woman.

    Posted on Saturday, December 28, 2013 at 4:02pm
  23. What is your interest in who I marry or who I love? How does that affect you?

    Replied on Saturday, December 28, 2013 at 11:15pm
  24. God also created Hitler so your point is invalid

    Posted on Sunday, December 29, 2013 at 5:06am
  25. The bible means nothing. It is fairy tales and lies and should be treated as such not as fact or basis of laws. I hate when the believers and followers of an entirely imbred world try and tell me who I can and cant love and call gay love/sex immoral but love child rape, rape, incest, slavery, adultery, greed, and other real immoral acts.

    Posted on Sunday, December 29, 2013 at 5:52am
  26. Homophobes have no argument without the bible, utterly PA-thetic. -_-

    Posted on Sunday, December 29, 2013 at 6:12am
  27. I really don’t want to go to Heaven, if it’s going to be full of homophobes.

    Posted on Sunday, December 29, 2013 at 6:50pm
  28. The funny thing is,all of you know that you came from your mothers womb and not your fathers wombs.

    Posted on Sunday, December 29, 2013 at 9:40pm