Last night, Judge Arenda Wright Allen, a federal district court judge in Virginia, struck down that state’s ban on same-sex marriage. It was a forceful opinion, finding that such a ban could not withstand scrutiny under the full force of the 14th Amendment’s Due Process Clause, nor a less exacting rational basis review under the Equal Protection Clause. If you don’t understand this legal jargon, that’s okay. Just know that the opinion is quite powerful, very pro-marriage equality, and is not outside the legal norm.
Like earlier decisions in Utah and Oklahoma, the one from Virginia is a grant of summary judgment, which means the judge decided that a trial was not necessary. In fact, the judge had asked the parties if they felt oral argument on the motions was necessary (they did). The fact that such a long opinion came down so quickly after oral argument suggests that the opinion had been worked out prior to oral arguments.
Witness again the power of United States v. Windsor. I have said over and over again that this is the most important civil rights case since Brown v. Board of Education. When Windsor struck down DOMA, the federal government was forced to recognize same-sex marriages. All sort of federal rights that were previously denied to same-sex couples have been granted. Also following Windsor, two state high courts, New Jersey and New Mexico, mandated marriage equality in their respective states. But the real promise of Windsor is what is happening now; the federal judiciary has been unchained. Prior to Windsor, federal judges would have hesitated to make sweeping rulings about marriage bans. Even the trial and appellate decisions in Prop 8, the lone marriage case brought before the federal judiciary, were measured. But post-Windsor, the flood gates have been opened. The opinions issued have not just been favorable, they have been overwhelmingly forceful. Moreover, these are not just happening in so-called blue states.
Here is a round-up of all the federal cases that have thus far been decided and which will all probably be ready to go to the Supreme Court in the 2014-2015 term.
1. Utah – A federal judge struck down the marriage ban.
2. Oklahoma – A federal judge struck down the marriage ban.
3. Ohio – A federal judge held that the state must recognize a valid same-sex marriage performed in another state for death certificate purposes (and implied that the marriage ban is unconstitutional).
4. Kentucky – A federal judge held that the state must recognize same-sex marriages validly performed in other states where they is legal (and implied that the marriage ban is unconstitutional.)
5. Virginia – A federal judge struck down the marriage ban.
6. The Ninth Circuit – As always, the Court of Appeals for the Ninth Circuit is ahead of the curve. In a case between two large pharmaceutical companies seemingly unrelated to marriage equality, the Ninth Circuit held that a gay juror cannot be removed by a peremptory challenge on the basis of his sexual orientation (just as one cannot be removed for race or gender). Although there is nothing in the case about marriage, this is an extremely important decision for the marriage equality movement. The Ninth Circuit held that sexual orientation is a protected class and thus deserves heightened scrutiny under the Equal Protection Clause of the 14th Amendment. Which means that any law that discriminates against gay people has a high bar to meet in order to prove its legality. No marriage ban can meet that standard. After the gay juror decision, Nevada’s Attorney General (Democrat) and Governor (Republican) withdrew from the defense of their state’s ban. The Ninth Circuit will hear that case shortly. When Nevada’s ban falls (and it is a “when” not an “if”), the bans in the other Ninth Circuit states will also have to fall. By my count that will apply to Montana, Idaho, Arizona, Alaska, and Oregon (if that state’s ban is not already overturned at the ballot box in November).
Which means that at least one, but more likely several, of these cases will be back at the Supreme Court in the next term for the final showdown.
Happy Valentine’s Day!