January 20, 2014
Momentum continued in 2013 for same-sex marriage proponents, with several victories in the federal courts. This post will look at these developments, including two important Supreme Court decisions issued on June 26.
In United States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808, the surviving spouse of a legally-married, same-sex couple sought to challenge the disallowance of a spousal deduction on her federal tax returns. The Supreme Court struck down the Defense of Marriage Act (DOMA) provision that defined, for federal law, the term “marriage” only as a legal union between a man and a woman, and the term “spouse” only as a person of the opposite sex who was a husband or wife, as a deprivation of the liberty of the person protected by the Fifth Amendment.
In Hollingsworth v. Perry, 133 S.Ct 2652, 186 L.Ed.2d 768, the court considered a challenge to California’s Proposition 8, which amended the state constitution to limit marriage to one man and one woman. The Supreme Court did not address the merits of the issue. Instead, it ruled that the official proponents of Proposition 8, who intervened when the state officials responsible for enforcing Proposition 8 refused to defend it, lacked standing to appeal the district court order declaring Proposition 8 unconstitutional. Thus, the district court order was allowed to stand, without invalidating other state’s marriage laws.
While momentous, those rulings were not the end of the year’s federal-court developments. In December, in Kitchen v. Herbert, — F.Supp.2d —-, 2013 WL 6697874, a district court in Utah found that it had jurisdiction to consider a challenge to Utah’s constitutional and statutory prohibition of same-sex marriage, and permanently enjoined the enforcement of those provisions. The district court held that the prohibition denied gay and lesbian citizens their fundamental right to marry, as protected under the Due Process Clause of the Fourteenth Amendment.
On January 6, 2014, the Supreme Court, 2014 WL 30367, granted a stay pending the state’s appeal to the Tenth Circuit, which has agreed to hear the case on an expedited schedule, with court papers due by February 25. If the case ultimately goes to the Supreme Court, the Court could be forced to confront the issue of states’ rights to define marriage so as to exclude same-sex couples. Although the state refused to do so, the Obama administration announced that it would recognize the 1,400 same-sex marriages that occurred after the district court’s ruling.
Also in December, in Obergefell v. Wymyslo, — F.Supp.2d —-, 2013 WL 6726688, a district court in Ohio ruled that, as applied to the plaintiffs, Ohio’s constitutional and statutory bans on recognizing same-sex marriages legally granted in other states violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The order was limited to requiring the state to record spouses in such marriages as a “surviving spouse” on their partners’ death certificates.
NOTE: As this post was “going to press,” on January 14, 2014, a district court in Oklahoma, — F.Supp.2d —-, 2014 WL 116013, held that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violated the Equal Protection Clause.
In the next blog, Nick Arth will take a look at the year’s developments in the state courts.