Marriage Equality Update: Utah And Indiana!

The Windsor decision continues to change the nation. From the 10th Circuit in Utah:

Last year the Court entertained the federal aspect of the issue in striking down § 3 of the Defense of Marriage Act (“DOMA”), United Supreme Court Hears Arguments On California's Prop 8 And Defense Of Marriage ActStates v. Windsor, 133 S. Ct. 2675 (2013), yet left open the question presented to us now in full bloom: May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry? Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so.

We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm.

The decision is stayed pending an appeal to SCOTUS (which could decline the case). But it’s the first ruling in favor of equality in a federal appeals court. And in Indiana – yes, Indiana! – marriages can begin as of now:

A federal judge ruled Wednesday that Indiana’s ban on gay marriage is unconstitutional. Indiana couples can start marrying immediately. The federal judge did not issue a stay on this ruling. Marion County Clerk Beth White said she is prepared to issue marriage licenses to same-sex couples in her office at the City-County Building in Downtown Indianapolis.

“The clerk’s office will be open until at least 4:30p.m. this evening to issue licenses. I will also conduct short, civil ceremonies on a first-come, first-serve basis for a voluntary $50 contribution to the Indiana Youth Group,” White said in a news release.

Not a single circuit court has upheld a state marriage ban, after Windsor. Congrats to Robbie Kaplan one more time. I wonder: Could they all fall without a SCOTUS ruling at all?

Update from a reader:

Two things, the first of which you’ve no doubt realized already:

1.   The lower court rulings of the last year have not only been unanimous in favor of marriage equality under the 14th Amendment; they have been unanimous in relying on LawrenceWindsor or both.  Not a single opinion affirming the right to marry relies in any substantive way on the Court’s ruling in Perry, if it even mentions the case, because Perry offers no such support. Windsor, building on Lawrence and Loving, was the bomb that burst the dam; Perry was a well-intended miss. Anybody – particularly any accomplished attorney who practices constitutional law – who touts Perry as the seminal legal breakthrough for marriage equality in this country is committing a fraud.

And as a constitutional lawyer myself, I can assure you that none of the attorneys who have argued for equality in federal court over the last year have said that about Perry in any of their cases.  One’s credibility as an advocate is too precious to come into court and say something so obviously wrong and stupid.

2.   One of the conditions that traditionally gets the Supreme Court’s attention in petitions for certiorari – that is, that persuades the Court to hear a case – is a split among lower courts in interpretations of federal law, whether it’s legislation or the Court’s own precedent.  As of this morning, that condition does not exist with respect to same-sex marriage, despite a very high number of lower court opinions on marriage equality in the year since Windsor.

Another condition for certiorari is the presence of an issue of pressing national importance.  Marriage equality qualifies there, of course, but public opinion is moving faster right now than the federal appellate process, and there is not one whit of evidence that support for marriage equality will do anything in the meantime but increase.  By the time the question gets back to the Court, if it ever does, equality in the minds of a big majority will be a done deal.  And when that case gets there, those lawyers will be arguing over whether Windsor compels a ruling in favor of equality. Nobody will mention Perry, unless the jurisdictional issue of standing is a problem.

We may look back in a decade or two and thank Justice Kennedy for keeping an even hand on the till, in Burkean fashion, as he kept the Court at a safe distance from a social and moral contest that a dramatic Court ruling would only have inflamed.  The issue of pressing national importance that gets the Court’s attention in a petition for cert is one that needs the Court’s resolution.  There is a long way to go, and some very conservative courts to hear from (the right-wing Fifth Circuit Court of Appeals will be an interesting indicator), but I’m not sure marriage equality will need much more than ceremonial resolution from the Court by the time it hears the question again.


One of your readers correctly wrote that the Supreme Court considers whether there is a split in the lower courts (general the courts of appeals) when deciding whether to take a case. However, the reader incorrectly states that there is no split and that therefore the Court might not hear a marriage equality case at all.

In fact, in 2006 the Eighth Circuit, which covers the area from the Dakotas to Arkansas, ruled that the federal Constitution does not require states to recognize same-sex marriage. As a result, there is already a split among the lower courts sufficient to attract Supreme Court review, in addition to the obvious issue of pressing national importance presented by the case – factors that, in combination, essentially require the Court to grant review. Utah might seek to delay Supreme Court review by asking the full Tenth Circuit to rehear the case before all twelve active judges, but I find that quite unlikely, not least because the Tenth Circuit is composed of seven Democratic appointees and five Republican appointees (one of whom, a very conservative Bush 43 appointee, joined the majority opinion).

And so this case is going back to the Supreme Court much faster than most people, including your reader, and, I think, the Court itself, expected. It will almost certainly be decided at the end of the next term a year from now. The only question is whether this Utah case, brought by a lesbian attorney and her clients, will beat Olson and Boies to the Supreme Court. Their case, brought undoubtedly to avenge their loss in Perry, is currently pending in the Fourth Circuit in an appeal from Virginia. It seems that now, like in 2013, Olson and Boies are racing to the Court to beat a pro bono attorney and her client to the prize. Given how they’ve spun their loss last year, one can only wonder what will happen if they win.

(Photo: Edie Windsor by Chip Somodevilla/Getty)