Same-sex marriage in the states since Windsor, part 1

June 11, 2014

same sex marriage survey nationwideOn June 26, 2013, the Supreme Court ruled in U.S. v. Windsor, which invalidated Section 3 of the federal Defense of Marriage Act, and mandated that the federal government recognize same-sex marriages lawfully solemnized under state law.  Although the ruling did not explicitly rulethat state-level same-sex marriage bans were also unconstitutional, states have seen a massive change in these laws since Windsor was handed down almost one year ago.

In this and the following post, we’ll be looking at the changes seen in individual states, perhaps even discerning a larger trend that may portend what the future may hold for the legal status of same-sex marriage on a national scale.

New Jersey

On October 21, 2013, same-sex marriage has been recognized in New Jersey after a Superior Court ruling struck down state statutory prohibitions against it.  The ruling cited heavily to Windsor, finding that denying same-sex couples the same rights and benefits of marriage enjoyed by heterosexual couples violated the New Jersey state constitution’s due process protections.

Interestingly, same-sex couples already had access to “civil unions” in New Jersey prior to the ruling.  But because of Windsor and resulting recognition of same-sex marriage – but not of civil unions – by the federal government, the New Jersey court found that civil unions were now depriving same-sex couples of federal marital benefits.  Thus, the state’s equal protection clause requires that same-sex couples be allowed access to the institution of marriage.


Same-sex marriage became legal in Hawaii on December 2, 2013, after the state legislature passed the Hawaii Marriage Equality Act of 2013 on November 12, 2013, which was signed the next day by Governor Neil Abercrombie.  The impetus for the act was reportedly “to establish marriage equity in the state of Hawaii commensurate with the recent Supreme Court decisions.”


Like Hawaii, Illinois began recognizing same-sex marriage through legislative action: on November 20, 2013, Governor Pat Quinn signed SB10 into law, legalizing same-sex marriage effective June 1, 2014.  However, after several couples sued the Cook County Clerk for the right to wed immediately, U.S. District Court Judge Sharon Johnson Coleman ruled on February 21, 2014 that there was ”no reason to delay further…and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry.”

Although the ruling only applied initially to Cook County, several other counties eventually followed suit.  Currently same-sex marriage is legal statewide since the above legislation took effect on June 1.

New Mexico

Same-sex marriage was recognized statewide on December 19, 2013, after the state supreme court ruled that discriminating against same-sex couples by denying them access to civil marriage violated the state constitution’s equal protection provisions.

Previously, New Mexico law was gender neutral on marriage, leaving the issue up to the discretion of each county’s clerk (prior to the ruling, eight of the state’s 33 counties allowed same-sex couples to obtain marriage licenses).  The state high court unanimously held that marriage licenses must be issued to same-sex couples just the same as they would be to opposite-sex ones.


The very next day after New Mexico’s court ruling, the U.S. District Court for the District of Utah issued a ruling legalizing same-sex marriage in the state.  Citing heavily to Windsor, the district court found that the state’s constitutional amendment banning same-sex marriage violated the U.S. Constitution’s Equal Protection Clause and the fundamental right to marry enshrined by the Due Process Clause.

The ruling was stayed by Supreme Court Justice Sonia Sotomayor on January 6, 2014 pending appeal to the Tenth Circuit.  Unless the Tenth Circuit breaks the long-running streak of federal rulings thus far, it seems likely that it will affirm the district court.  At that point, the Supreme Court would not stay the ruling unless it were going to directly weigh in on the matter.


On January 14, 2014, the U.S. District Court for the Northern District of Oklahoma declared the state’s defense of marriage act and constitutional amendment banning same-sex marriage violates the Fourteenth Amendment’s Equal Protection Clause.  The ruling was stayed by the court pending appeal, however.

The opinion also cited heavily to – you guessed it – Windsor.  Specifically, the district court’s ruling noted that it “knows a rhetorical shift when it sees one,” referring to the change in direction on the issue of same-sex rights from the 1973 ruling Baker v. Nelson (upholding Minnesota’s state same-sex marriage ban as constitutional) to the chain of cases beginning with 1996’s Romer v. Evans and culminating with Windsor.

Just as with Utah’s case, it’s unlikely that this case would be reversed on appeal, leaving it up to the U.S. Supreme Court to either weigh in on the matter, or allow the appeals court ruling to stand (and thus legalizing same-sex marriage in Utah.


Kentucky’s constitutional amendment banning same-sex marriage was ruled unconstitutional by Judge John G. Heyburn II of the U.S. District Court for the Western District of Kentucky.  Judge Heyburn stayed his February 12 ruling pending appeal to the Sixth District.

Aside from this similarity to Oklahoma’s and Utah’s respective cases, the Kentucky ruling shares something else in common with the two previously discussed rulings (aside from its significant reliance on Windsor): it reached its result by apply the rational basis test.

In other words, the same-sex marriage bans of Utah, Oklahoma, and Kentucky were all invalidated under the rational basis test (or, more precisely, the “rational basis with teeth” test first employed in Romer).  This seemingly renders irrelevant the question of which level of scrutiny to apply to laws that discriminate on the basis of sexual orientation, since they can’t even seem to pass the least stringent of standards.


The day after the ruling on Kentucky’s ban was handed down, Virginia’s ban received its own verdict: unconstitutional.  Like the previous three rulings discussed, the Virginia ruling, made by Judge Arenda L. Wright Allen of the U.S. District Court of the Eastern District of Virginia, repeated cited to Windsor and was stayed pending appeal.

Unlike those three previous rulings, however, Judge Wright Allen ruled that, since such bans infringe on the fundamental constitutional right to marriage, the appropriate level of judicial review is strict scrutiny – the highest available.  Judge Wright Allen further noted, however, that Virginia’s ban wouldn’t have even passed rational basis.

Whether other courts follow Judge Wright Allen’s lead remains to be seen, but the ruling still creates new precedent calling for strict scrutiny to review same-sex marriage bans.


Closing out the rulings issue during the month of February 2014 is De Leon v. Perry out of the U.S. District Court for the Western District of Texas, made on February 26, 2014.

Like so many others before it, enforcement of De Leon was stayed pending appeal.  Second – and unsurprisingly – it also repeated cited to Windsor.  Finally, the ruling also held that the same-sex marriage ban could not survive even rational basis review.  In case you were wondering, with De Leon, district courts in four different federal circuits have all ruled in a very similar matter on the issue since December 2013.

Furthermore, there has not been a single federal ruling against same-sex marriage rights since Windsor, seemingly suggesting that appellate reviews of these cases will result in their affirmances.  But only time will tell for sure.

Be sure to stay tuned for part 2 of this post, covering the same-sex marriage legal timeline from March of 2014 until the present.