A federal judge in Virginia struck down that state’s voter-approved ban on same-sex marriage this week. It’s just the latest in a string of similar rulings in conservative states, and it indicates that the strategy for winning marriage equality in federal courts is moving faster than many had expected.
In her ruling, U.S. District Judge Arenda Wright Allen said Virginia’s ban on same-sex marriage is unconstitutional because “core civil rights are at stake.” She compared the case to the landmark 1967 Supreme Court ruling recognizing interracial marriage.
But the judge stayed her order pending appeal, which means same-sex couples in Virginia can’t rush to the altar yet.
Still, Matthew McGill, one of the attorneys in the case, says the ruling is significant.
“You have district courts across the country, in places that are not seen as remotely liberal, all recognizing that this is what our federal Constitution and its promise of equality requires,” McGill says.
Cases Blossom In Conservative States
The ruling follows another decision issued this week by a federal judge in Kentucky ordering officials there to recognize same-sex marriages performed in other states. One of the attorneys in the Kentucky case, Dawn Elliott, says her strategy was to chip away at the state’s same-sex marriage ban.
“The ultimate goal is for everybody in the Commonwealth of Kentucky who is a gay or lesbian couple to be able to marry,” she says. “But we figured we’d start out small and then ultimately hit the ball right out of the park.”
The ruling in Kentucky follows on the heels of similar decisions by federal judges in Utah and Oklahoma. In Texas this week, a federal judge heard a challenge to the same-sex marriage ban in that state.
Lawyers in Missouri and Alabama have also filed lawsuits on behalf of same-sex couples in those states. Evan Wolfson, president of the activist group Freedom to Marry, says the legal landscape is in constant motion, with more than 40 cases underway in 25 states.
“All [are] making the case that discrimination against gay people in marriage is unconstitutional,” he says.
Interpreting The Fall Of DOMA
Wolfson says the decisions supporting same-sex marriage, even in red and purple states, come out of the Supreme Court’s ruling last year striking down the Defense of Marriage Act, or DOMA.
It “said that under our Constitution, there really is no legitimate reason for treating one group of committed couples differently from the other,” Wolfson says.
But opponents of same-sex marriage say the federal district courts are misreading the Supreme Court’s DOMA ruling.
That ruling relied on the fact that traditionally, states have been able to determine marriage policy, says John Eastman, a professor at the Chapman University Law School. Eastman recalls that the Supreme Court said that the federal government was obligated to accept state laws on marriage.
“If you follow the logic, the federal government, including the federal courts, ought to be respecting the decisions of the states of Utah and Oklahoma, and Virginia and Kentucky, if they choose a different policy and continue to adhere to a different purpose for marriage,” he says.
Eastman says he’s not surprised by the pace of the court rulings striking down same-sex marriage bans. After all, he says, there’s a coordinated effort to take advantage of the dispute about what the DOMA decision really means.
Still, the recent decisions also focused on equal protection as guaranteed by the Fourteenth Amendment.
Ned Flaherty, who tracks every lawsuit in the country for Marriage Equality USA, says there’s less coordination than meets the eye, and that the legal momentum for same-sex marriage is taking on a life of its own.
“Every day, when a new suit is announced somewhere, it’s news to everybody,” Flaherty says.
Flaherty says the news will keep coming, as seven more federal rulings are due in the coming months.
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