The federal court rulings tossing out or undermining state same sex marriage bans are coming fast and furious. We now have Utah, Oklahoma and Virginia where federal judges have ruled that these bans are unconstitutional. (Each ruling is stayed pending appeal.) In two other states, Kentucky and Ohio, judges have ruled on narrower issues which have not overturned the bans themselves but signaled clearly that the bans themselves are likely constitutionally untenable. These are all the fall out of the Supreme Court’s historic Windsor decision which was decided in June of 2013 and ruled DOMA unconstitutional.
Not clearly judicial but still revealing, Nevada’s Republican governor recently decided that it no longer made sense to defend the state’s gay marriage ban. And just yesterday, Indiana Republicans decided in essence that it simply wasn’t worth the trouble of pushing through a state constitutional amendment banning gay marriage.
You’ll notice that two of these cases are in the 10th judicial circuit (Utah and Oklahoma), two are in the 6th (Kentucky and Ohio) and one is in the 4th (Virginia). (See district map here.) These also tend to be in either purple-ish or very red states. But that’s not terribly surprising since marriage equality is already the law in numerous blue states – California, New York, Illinois, Minnesota, Washington, Massachusetts, etc. A total of 17 states. Back in late December I wrote that I thought the decisions in Utah and Ohio showed that the implications of Windsor were clear and that marriage equality was likely to be the law throughout the country – by judicial fiat – much sooner than people realize, perhaps before President Obama even leaves office. And the last few weeks only makes that seem more emphatically clear to me.
Yesterday’s decision in Virginia was from a relatively new Obama appointee. But the one in Kentucky, notably, was issued by a Bush One appointee. To the best of my knowledge, no federal judge in the country has yet ruled with a contrary ruling which holds that Windsor still permits states to discriminate against same sex couples.
The Supreme Court operates by odd and sometimes inscrutable methods. And they’re most likely to take up a case when one or more districts are ruling in significantly different ways on an issue of great national import. It’s not clear we have that yet since district judges all seem to be coming down on the same side. But it’s difficult for me to see how the Court can wait that much longer to speak to this issue while the law is being articulated, in pretty clear fidelity to the Court’s Windsor ruling, so rapidly on the ground.
Curious what Court watchers think and predict.