The past two months have seen nonstop legal movement across the country toward marriage equality. What is happening, why, and when is it going to be resolved?
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WASHINGTON — Utah, Ohio, Oklahoma, Kentucky, and Virginia.
In the past two months, five federal judges appointed by presidents of both major parties struck down constitutional amendments aimed at limiting same-sex couples' marriage rights. In three states, they found marriage bans unconstitutional; in two others, they ruled that states must recognize marriages performed elsewhere.
"We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect," U.S. District Court Judge Arenda L. Allen Wright wrote in striking down Virginia's ban on Thursday evening.
This sudden rush follows a single action: Justice Anthony Kennedy spoke.
Before the decisions of these past two months, Judge Vaughn Walker's August 2010 decision striking down California's Proposition 8 marriage amendment was the only such decision to come from a federal judge in the nation's history.
In fact, two other trial court judges — one in Nevada and one in Hawaii — found against same-sex couples suing in those states for a right to marry in 2012.
What happened in the interim was both critical to the change and expected by those who have been watching the law develop in this area over the past two decades — and centers on the language of Kennedy's Supreme Court ruling.
In Edith Windsor's challenge to the Defense of Marriage Act, she fought, successfully, for the Supreme Court to strike down DOMA's ban on the federal government recognizing same-sex couples' marriages.
Kennedy, writing the opinion for the court's five-member majority, said of DOMA that its differential treatment of same-sex couples "demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples."
Further, he wrote, "Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound."
That opinion has led to dozens of marriage cases being filed across the nation and touched off a unanimous view from lower court federal judges since that same-sex couples have a right to marry and/or have their marriages from other jurisdictions recognized — a point made even more broadly by David Cohen and Dahlia Lithwick at Slate on Friday.
Cindy Bednarz (left)and her wife Lisa Bednarz attend a same-sex marriage rally at Utah's State Capitol building in Salt Lake City, Utah, Jan. 28, 2014.
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When Kennedy wrote that the "moral and sexual choices" of same-sex couples are protected, he was referring to and extending the impact of his own opinion for the Supreme Court striking down sodomy laws as unconstitutional in 2003.
That opinion, Lawrence v. Texas, was his second opinion in a "gay rights" case. His first, in 1996, was in a case in which the Supreme Court struck down Colorado's Amendment 2 banning cities and other political subdivisions in the state from banning discrimination against gay, lesbian, or bisexual people.
In that nearly 18-year-old opinion, Kennedy wrote for the court, "Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws."
That was the first time the Supreme Court had spoken out in favor of equal treatment of gay, lesbian, and bisexual people. Kennedy expanded that ruling by striking down sodomy laws in Lawrence, and he left no doubt about the path he is on when he issued the court's opinion in United States v. Windsor this past June.
The court avoided answering the larger question of whether states need to allow same-sex couples to marry, a question that was brought to the court in the Proposition 8 case. The justices, however, tossed out that appeal on technical grounds of standing because none of the government officials responsible for enforcing California law brought the appeal. The move meant the trial court decision striking down California's amendment remained, but it applied only to California.
Additionally, since 1996 and including in Windsor, the Supreme Court has never decided an underlying issue of whether sexual orientation-based laws or government policies should be subjected to the same kind of judicial scrutiny given under Constitution's equal protection clause to laws that classify based on sex or other such attributes.
Such heightened scrutiny would mean that government officials would need to show an important reason for treating gay people differently than straight people — a rule that most experts believe would invalidate all state marriage bans.