Same-sex marriage in the states since Windsor, part 2

June 12, 2014

same sex marriage survey nationwideYesterday, we looked at the first half of the states that have seen their same-sex marriage laws shift since Windsor was decided last June.  Today, we look at the other half, all of which have taken place in the past three months.


Michigan saw its same-sex marriage ban declared unconstitutional by Judge Bernard A. Friedman of the U.S. District Court for Eastern District of Michigan on March 21, 2014.  In what should now be fully recognized as an ongoing theme, Judge Friedman’s ruling relied on Windsor in finding that Michigan’s same-sex marriage ban violated the Fourteenth Amendment’s Equal Protection and Due Process Clauses.  The opinion further held that the ban could not pass rational basis scrutiny.

As you would expect, Judge Friedman’s ruling was stayed pending appeal, but not before over 300 couples were married the next day (the federal government has stated that it will recognize the validity of those marriages).  The Sixth Circuit Court of Appeals is currently considering the case, and will likely hand down a ruling later this year or early next year.  That is, assuming the Supreme Court doesn’t tackle the matter first.


Ohio has a ruling that bucks the ongoing trend to a small degree.  The ruling pertaining to this state is Henry v. Himes, decided by Judge Timothy S. Black of the U.S. District Court for the Southern District of Ohio on April 14, 2014.

Most of the same hallmarks from the other federal rulings are present in Henry: a reliance on Windsor to find that Ohio’s law violates the Fourteenth Amendment’s Equal Protection Clause, a holding that the state law failed to pass rational basis-level scrutiny, and a stay of the order pending appeal.

However, here’s where this ruling is different from the others: it only invalidated Ohio’s law as it pertained to refusing to recognize same-sex marriages performed in other jurisdictions.  Albeit, this is because that was the only issue presented to the court, but it’s an interesting divergence nonetheless.

Should the ruling be upheld, however, the distinction will be largely irrelevant, since same-sex couples may travel to any one of the neighboring states that allow same-sex marriage, and they would then have all of the benefits of other married couples in the state.

If the Supreme Court decides to weigh in on the issue, though, this may all be a moot point anyhow.


On May 9, 2014, Arkansas circuit court Judge Chris Piazza struck down Arkansas’s legal prohibitions against same-sex marriage.  A stay was eventually entered pending appeal, but it was done so a week after the ruling, and during the interim, about 450 same-sex couples were able to obtain marriage licenses.

Despite this being a state court ruling, the opinion relied on Windsor, and reached largely the same conclusions as its federal counterparts: same-sex marriage bans are unconstitutional as an equal protection violation.

Another parallel worth noting here is the precedent cited to justify the stay pending appeal: Justice Sotomayor’s issuance of the stay pending appeal in the ruling on Utah’s same-sex marriage ban.  That decision has been repeatedly cited by federal courts in staying rulings mentioned earlier (in this post and the previous one).


Idaho’s same-sex marriage ban was struck down on May 13, 2014, and same-sex marriage would have become legal in the state on May 16 had the Ninth Circuit Court of Appeals not issued a stay pending appeal on May 15.

At this point, we don’t have a lot of new territory to cover when talking about these rulings.  This case, Latta v. Otter, was issued by the U.S. District Court for the District of Idaho, and employed largely the same arguments and reached the same conclusion as the cases we’ve covered so far: citing to Windsor, the court held that the state’s same-sex marriage ban violated the Constitution’s Due Process and Equal Protection Clauses.  And the ban couldn’t pass rational basis scrutiny.

At this point, it seems all but inevitable that the issue will land on the Supreme Court’s docket.  It’s just a question of “When?” at this point.


Finally, we come to a state that has a notably different story to tell: on May 19, 2014, Judge Michael McShane of the U.S. District Court for the District of Oregon struck down the state’s 2004 constitutional amendment that banned recognition of same-sex marriage.

Yes, the opinion relied significantly on Windsor.  Yes, the opinion found that the ban violated the Constitution’s Equal Protection Clause, and that there was no rational basis for the law.

So how’s this one different?

Well, for starters, the state of Oregon took a page from the Obama administration’s playbook and declared that it wasn’t going to defend the law.  So, naturally, not only did the challengers prevail, no appeal was heard.

Well, I take that back.  The National Organization for Marriage, an anti-same-sex marriage advocacy group, attempted to appeal the ruling, but after it was determined that it lacked standing (by the district court and the court of appeals), and after the Supreme Court summarily denied its motion for a stay of the district court’s order, the appeal was unsuccessful.

Thus, unlike in the cases of the many other states we’ve covered already, the U.S. district court ruling actually made same-sex marriage legal in the state of Oregon.


The day after Oregon’s ruling, a court ruled on the constitutionality of Pennsylvania’s same-sex marriage ban.  Judge John E. Jones, III of the U.S. District Court for the Middle District of Pennsylvania took a bit of a different route with his opinion than the majority of others: Judge Jones ruled that Pennsylvania’s same-sex marriage ban infringed the challengers’ fundamental right to marry under the U.S. Constitution.

Like so many other (that is to say, all of the other) rulings, Judge Jones’ opinion relied in large part on Windsor, noting in particular that Justice Kennedy’s opinion “opined that discrimination caused by the non-recognition of same-sex couples’ marriages ‘impose[s] a disadvantage, a separate status, and so a stigma upon’ same-sex couples in the eyes of the state and the broader community.”

This opinion exemplifies how, even though Windsor contained no explicit legal language that could be unequivocally cited as precedent to support striking down state same-sex marriage bans, it clearly has been used to a significant degree by courts to invalidate such bans across the country by citing to Justice Kennedy’s discussion of how same-sex couples are harmed by government refusal to recognize their marriages.

Interestingly, Pennsylvania’s Republican Governor Tom Corbett announced the day after Judge Jones’ opinion was handed down that the state would not appeal the decision, thereby legalizing same-sex marriage in the state indefinitely.


Finally, we come to Wisconsin, which just saw its ban ruled unconstitutional less than a week ago.  While the dust has yet to settle completely on the matter of whether the decision will be stayed pending appeal, several counties have already begun issuing marriage licenses to same-sex couples (see this post for more details).

The ruling by Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin resembled Judge Jones’ opinion relating to Pennsylvania, in that it struck down Wisconsin’s law because it infringed on same-sex couples’ fundamental right to marry under the U.S. Constitution.  In addition, though, Judge Crabb also found that equal protection claims involving sexual orientation discrimination were subject to heightened (or “intermediate”) scrutiny, and since Wisconsin’s laws did not “further legitimate a state interest,” it is unconstitutional.

This approach is notable in that it subjects all laws – not just same-sex marriage bans – to intermediate scrutiny, which would mark a significant advancement for the legal rights of LGBT individuals.  Whether this legal reasoning is the new trend or simply one favored in less conservative states remains to be seen, but this split in approaches among the circuits, even if the end result is the same (invalid same-sex marriage bans), makes it all the more likely that the Supreme Court will take up the issue.

There are only two weeks until the one year anniversary of Windsor, but that doesn’t mean that we still couldn’t see more shifts in the legal landscape on same-sex marriage.  In addition to instigating this fundamental shift in legal terrain, Windsor made it all the more likely that the issue would again come before the Supreme Court, due to both the split in legal reasoning between courts.

Only time will tell how the ground will finally settle on the issue, but we have a pretty strong indication of the direction that the nation is heading from looking at the individual experiences of these states.