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 rational 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 last night 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.”
“The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,” Kennedy continued, “and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.”
That decision, plus the two other gay-rights decisions made by the court and written by Kennedy — the first in 1996 when the high court ruled an attempt in Colorado to prohibit discrimination protections for gay, lesbian and bisexual people was unconstitutional, and the second in 2003 when the court struck down anti-sodomy laws — join together to “create a unified whole,” said Boies, that will lead to the most monumental gay-rights decision by the high court.
The Supreme Court never addressed the arguments put forth by the Proposition 8 case that same-sex couples have a constitutional right to marry, instead deciding last June that Proposition 8 supporters did not have standing to bring the case before the Supreme Court in the first place, and that a lower court’s ruling striking down California’s same-sex marriage ban would stand. To many observers, the move was seen as a punt by the Supreme Court justices not yet ready to declare a national right to same-sex marriages.
But while that may have been the case, the brisk pace at which challenges to same-sex marriage bans have worked their way through the court could place the issue before the Supreme Court sooner than anyone anticipated.
“The cases are percolating but they’re percolating rapidly because people reading the decisions from the Untied States Supreme Court can tell what they mean,” Olson said during a call with reporters. “Even the dissent in the DOMA case by Justice Scalia recognized that the court essentially had decided gay and lesbian citizens could not be deprived of their right to fundamental happiness and the fundamental right of marriage and equality.”
No one can predict with certainty when same-sex marriage will again appear before the nine Supreme Court justices, but it is certain that it will be sooner rather than later.
Yesterday’s ruling on the Virginia marriage ban is expected to be appealed to the 4th Circuit Court of Appeals. (Olson says that despite the fact that Virginia Attorney General Mark Herring has decided not to defend the state ban, he is confident their case would have standing before the Supreme Court because of the defense put on by county clerks.) Appeals of decisions in the Utah and Oklahoma cases will be heard by the 10th Circuit Court of Appeals and the 6th Circuit Court of Appeals will hear the Ohio and Kentucky cases. Any one of those cases, or one of the more than 40 other lawsuits filed in dozens of states, could make it before the Supreme Court.
“There are a number of cases that are winding their way to the Supreme Court,” said Boies. “I think they will all get to the Supreme Court at about the same time. The Supreme Court can decide to take them all and consolidate them, they can take one or more of the cases but not all of them.” According to Olson, this could happen at some point during the Supreme Court’s next two terms.
When those cases do arrive before the court, it will be seen whether Scalia’s prediction in the DOMA case, which has been directly cited by several federal judges in their decisions siding with marriage equality, holds true.
“[T]hat Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the ‘personhood and dignity’ which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that ‘personhood and dignity’ in the first place,” Scalia wrote. “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”
[Photo: Plaintiffs in the Virginia case Tim Bostic (left) and Tony London. Credit: American Foundation for Equal Rights.]