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What are the Courts Doing with Gay Marriage? An Update

Fresh out of Kentucky this week is another federal district court ruling striking down state law which the courts say discriminates against homosexual Americans. What is astounding to some is that this most recent ruling is not even getting front billing on most national news providers. That is likely because it is nothing terribly new. Similar cases from all over the country have been handed down even in some of the US’s most conservative states, like Utah and Oklahoma (see Kitchen v. Herbert and Bishop v. Oklahoma respectively). This kind of stuff gets lawyers excited, not because of their political or moral views one way or the other, but when federal judges start striking down state laws and even portions of state constitutions, we know SCOTUS is going to get involved, and the Supreme Court is not going to be able to resist ruling on this issue for much longer.

What Brought us Here?

The storm of federal suits against alleged same-sex discrimination stems out of two SCOTUS decisions, Windsor and Perry (for an in-depth description of these cases, see Last year the Supreme Court struck down key portions of the Defense of Marriage Act (Windsor) and simultaneously upheld a California Supreme Court decision that overturned an amendment to the California Constitution prohibiting same-sex marriage (Perry). In Windsor, the Court ruled that DOMA discriminates against same-sex couples, and that the 5th Amendment Due Process Clause (which applies only to the Federal Government) prohibits such discrimination. In Perry,  the Supreme Court upheld the California Supreme Court’s ruling that the 14th Amendment (which applies to the states) prohibits same-sex discrimination, but did so on standing grounds (i.e. the plaintiffs did not have standing to appeal the case in the first place, so SCOTUS could not rule on the merits of the case). To put it in colloquial terms, SCOTUS punted the issue.

So Why are the Courts Blowing up with New Cases?

Putting it simply, district federal courts are taking the arguments in Windsor and taking them to (what they feel is) the next logical conclusion. If the Supreme Court says that discriminating against homosexuals is a violation of 5th Amendment Due Process, then isn’t it also violating the 14th Amendment also? The two amendments have language that mirrors one another, and the elephant in the room is that if a form of discrimination is a violation of the 14th Amendment, that discrimination is prohibited in every state. Justice Scalia, in his dissent in Perry, even very correctly predicted this eruption of litigation, pointing out the holes in the majority’s reasoning when they refused to make a 14th Amendment ruling.

What’s Next?

A Supreme Court case is next, that is assuming one of these cases survives appeal in the Circuits. Rarely is there an issue that is so almost certain to reach and be accepted by the high court. The lower court rulings are overturning major legislation, are creating confusion about federal law application from state to state, and are all based on a hole in the law the Court itself left. This is why lawyers are so excited. One way or another, SCOTUS is going to at least partially settle the LGBT discrimination question in the near future. Will the high court only rule on marriage? Labor restrictions? Or will LGBT status be made a protected class in the eyes of the law, something akin to race, gender, or religious affiliation? This blog’s authors will be watching with anticipation.

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