Marriage Equality Victories Mount; Supremes Seem Destined to Revisit Issue
Last June, when the Supreme Court ruled 5-4 that Section 3 of the Defense of Marriage Act defining marriage as between a man and a woman was unconstitutional, Justice Antonin Scalia made a prediction: In the not so distant future, the question of whether same-sex couples have a constitutional right to marry would once again be before the high court, and the rationale set forth in the Windsor decision would all but ensure a sweeping ruling that legalizes same-sex marriage nationwide.
"As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ’bare ... desire to harm’ couples in same-sex marriages," Scalia wrote in his fiery dissent. "How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status."
Scalia’s prediction has not yet come to fruition, but the groundwork for such a landmark ruling by the nation’s highest court has certainly been set. Indeed, nearly eight months later, every federal judge - whether appointed by a Democratic president or a Republican president - to consider state same-sex marriage bans has found them to be unconstitutional, in many cases pointing to an aspect of the Windsor decision in their rulings.
The latest such ruling came Feb. 13 in Virginia, where U.S. District Court Judge Arenda L. Wright Allen found that the state’s marriage laws "unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry."
"Justice has often been forged from fires of indignities and prejudices suffered," the ruling declared. "Our triumphs that celebrate the freedom of choice are hallowed. We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect."
The victories that have been racked up in less than a year since June - not only in federal courts from the South to the Midwest, but also in state courts from New Mexico to New Jersey - illustrates the injection of momentum to the marriage-equality movement the Windsor decision has provided.
"Federal courts are consistently, regularly now affirming the right of gay and lesbian citizens to be a part of the population and the rest of our citizens with equal rights to the fundamental right to marry," said Ted Olson, the conservative half of the star legal duo who, with David Boies, successfully challenged California’s same-sex marriage ban and is now challenging the Virginia ban.
Indeed, in the past two months alone five federal judges have struck down constitutional amendments that prohibit recognition of same-sex marriage. With yesterday’s ruling, Virginia joins Utah and Oklahoma in having their bans on same-sex marriage struck down. Federal courts have also declared bans in Ohio and Kentucky prohibiting recognition of same-sex marriages legally performed in other jurisdictions as unconstitutional.
In each case, the rationale for such a ruling has gone back to the sweeping ruling penned by Justice Anthony Kennedy in the Windsor case. In that decision, which found DOMA in violation of the Fifth Amendment, Kennedy wrote the 1996 law "undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage."