Gay-Marriage Proponents Keep Win Streak as Appeals Loom

A judge’s decision throwing out Virginia’s ban on gay marriage as a violation of the U.S. Constitution extends to seven the win streak for proponents of same-sex unions racing to get back to the U.S. Supreme Court.

Federal judges in Oklahoma and Utah and state jurists in New Jersey and New Mexico determined gays have a right to wed after the high court struck down a 1996 U.S. law barring federal recognition of same-sex couples and let stand a lower-court ruling allowing gay weddings in California.

A federal judge ruled Feb. 12 that Kentucky must recognize same-sex couples married legally in other states. After an Illinois judge denied a bid to dismiss a challenge to that state’s ban in September, its lawmakers passed a bill legalizing gay marriage. Additionally, attorneys general in Pennsylvania and, this week, Nevada have stopped defending gay marriage bans in their states.

The U.S. Court of Appeals in San Francisco is the only one of 12 federal appellate circuits to rule on gay marriage and it upheld the right by a 2-1 vote in its ruling overturning a California gay-marriage ban approved by voters in 2008. Oklahoma’s appeal is set for oral argument before the U.S. Court of Appeals in Denver on April 17, one week after the same three-judge panel hears Utah’s appeal.

Nevada’s case before the San Francisco appeals court has been put on an expedited schedule, according to Camilla Taylor, an attorney with the gay-rights advocacy group Lambda Legal, meaning it could be decided about the same time as those cases in the Denver appellate court.

Supreme Court

“We’ve seen huge momentum at the lower courts,” Taylor said yesterday in a phone interview. As soon as next year, the U.S. Supreme Court could take up and decide the issue of whether state gay-marriage bans violate the Constitution, she said.

If the Feb. 13 ruling by U.S. District Judge Arenda Wright Allen in Norfolk, Virginia, is upheld on appeal, her state would be the 18th to allow same-sex unions. Comparing bans on same-sex unions to the state’s prohibition on interracial marriage that was struck down by the Supreme Court in 1967, Allen concluded Virginia’s ban violated constitutional guarantees of equal protection. She put her ruling on hold until any appeals are resolved.

By court order, ballot or legislative fiat, gay marriages were legal before the Supreme Court’s June decision in Connecticut, Arizona, Delaware, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington, plus the District of Columbia. Same-sex weddings in California resumed June 28, two days after the Supreme Court ruling. Since then, gay marriage has become legal in Hawaii, Minnesota, New Jersey, New Mexico and Rhode Island. The Illinois law allowing same-sex weddings takes effect June 1.

Courtroom Opposition

The drive for national recognition of same-sex unions won’t proceed through the courts unimpeded, John Eastman, chairman of the Washington-based National Organization for Marriage.

“I don’t consider it a trend yet,” Eastman said yesterday in a phone interview. “These are single federal court trial judges. I think the most important decision of the recent slew of decisions is the Supreme Court’s unanimous decision on Utah to stay the ruling.”

Last month the Supreme Court blocked enforcement of a ruling by U.S. District Judge Robert J. Shelby in Salt Lake City that Utah’s ban is unconstitutional while that case is appealed. When U.S. District Judge Terence Kern in Oklahoma struck down that state’s ban on Jan. 14, he stayed his decision to allow review before the appeals court in Denver.

State Power

On Feb. 10, attorneys general from 11 states including Michigan, Indiana, Arizona and Colorado filed legal arguments supporting Utah. Ten of the attorneys general, all of them Republican, said in a joint filing that they “have an interest in protecting state power to adhere to the traditional definition of marriage.”

While Allen and the other judges relied in part on the Supreme Court’s decision to gut the federal Defense of Marriage of Act, the high court’s 5-4 majority dealt only with DoMA and said it was deferring to the states on the broader issue of marriage.

The Utah decision indicates the Supreme Court genuinely intends to leave the issue up to the states, Eastman said.

“I think it’s quite likely that that’s where the Supreme Court will end up on this,” Eastman said.

While at least three trial court judges who have sided with gay-marriage proponents were nominated by Democratic presidents, two were Republican nominees. Allen and Shelby were appointees of President Barack Obama, a Democrat. Kern in Tulsa, Oklahoma, was appointed by another Democrat, Bill Clinton.

Bush Appointees

Former U.S. District Judge Vaughn Walker in San Francisco, who ruled in the California case, and U.S. District Judge John G. Heyburn II in Louisville, Kentucky, who said the state had to recognize gay couples married elsewhere, were appointees of former President George H.W. Bush, a Republican.

Heyburn said in his ruling that Kentucky’s ban on same-sex marriages in the state may be vulnerable too. The Associated Press reported yesterday that two couples had sued to overturn that law. Any appeal from rulings in Kentucky or the outcome of a federal court trial over Michigan’s ban, set to start Feb. 25, would be considered by a U.S. appeals court in Cincinnati.

A challenge to Wisconsin’s same-sex marriage ban was filed this month in federal court in Madison. Similar challenges are pending in Idaho, Florida, Alabama and Texas.

Lawsuits seeking to overturn laws barring the recognition of out-of-state gay marriages were filed this week in Missouri and Louisiana.

Kentucky Attorney General Jack Conway, a Democrat, defended his state’s law barring recognition of gay couples married out of state.

Five Democrats

Five other attorneys general, all Democrats, have said their states’ anti-gay marriage laws were unconstitutional and declined to defend them. They include Kamala Harris of California, Lisa Madigan of Illinois, Pennsylvania’s Kathleen Kane, Nevada’s Catherine Cortez Masto and Virginia’s Mark Herring, who replaced Ken Cuccinelli, a Republican, in January.

In Oregon, where the state’s prohibition of same-sex marriage is being challenged in federal court, Attorney General Ellen Rosenblum, a Democrat, is scheduled to file a response by Feb. 20.

Rosenblum last year joined other states that submitted filings to the U.S. Supreme Court opposing California’s gay-marriage ban and the federal Defense of Marriage Act.

Michael Kron, a spokesman for Rosenblum, declined to comment on whether she will defend the state’s law.

National recognition of same-sex marriage isn’t inevitable, University of Richmond law professor Carl Tobias said yesterday in a phone interview.

Procedural Mechanisms

“There are all kinds of procedural mechanisms the justices can use to not decide something,” if they want to avoid the issue, Tobias said. At least four justices must agree to hear a case before it can be considered by the court, he said.

Faced with the opportunity in June to make sweeping rulings on whether same-sex marriage was a constitutional right, the court issued more narrowly defined decisions overturning the federal law and based its decision in the California case on a finding that gay-marriage opponents couldn’t defend the law if state officials chose not to do so.

“Those are two signals that they’re not ready, or weren’t ready then,” Tobias said, “though we may be back there.”

The Virginia case is Bostic v. McDonnell, 13-cv-00395, U.S. District Court, Eastern District of Virginia (Norfolk).

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