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History and Recent Developments in Same-Sex Marriage Litigation

Engage Volume 15, Issue 1 20140528_SSMWhitePaperCover.jpg

Note from the Editor: The purpose of this article is to provide a comprehensive national survey of recent cases regarding same-sex marriage laws. The cases span over half the states and are being litigated in both federal and state courts. We hope this article serves as a useful reference and guide to any questions you may have about the legal landscape of same-sex marriage.  The Federalist Society takes seriously its responsibility as a non-partisan institution engaged in fostering a serious dialogue about legal issues in the public square. This article presents a number of important issues, and is part of an ongoing conversation.  To this end, we provide links to additional sources of information on same-sex marriage litgation. 

 

Introduction

In 2013, the nationwide legal debate over same-sex marriage reached a temporary crescendo at the U.S. Supreme Court.  The Court heard two cases—one regarding a state marriage law, and one regarding the federal marriage law (DOMA—Defense of Marriage Act).1  Each case presented distinct, though similar questions regarding the constitutionality of laws defining marriage as the union of one man and one woman.  Scholars on both sides speculated that the Supreme Court could attempt to conclusively decide many of the questions surrounding the debate once and for all.  And because of the potential gravity of the rulings, the public interest reached immense levels.  Virtually every domestic and international media outlet was focused on the cases and their potential outcomes.  Within the Court, over 170 total amicus briefs were filed in both cases.

The Supreme Court’s rulings in June 2013 did anything but settle the issue.  In the “state” case, Hollingsworth v. Perry, the Court never reached the merits of whether Proposition 8—California’s constitutional amendment defining marriage as the union of one man and one woman—passed constitutional muster.  Instead, the Court dismissed the case on standing grounds,2 vacating the opinion of the Ninth Circuit Court of Appeals,3 and leaving only the opinion of the district court intact.4

The “federal” case, United States v. Windsor,5 struck down as unconstitutional section 3 of DOMA, which defined the terms “marriage” and “spouse” as referring to unions of one man and one woman for all purposes under federal law.6  In its opinion, the Court criticized Congress for defining marriage itself, and not deferring to the definitions of the states.7  However, it stopped short of passing constitutional judgment on state laws defining marriage in the traditional sense.  Indeed, the Court expressly limited Windsor’s impact, stating that “[t]his opinion and its holding are confined to those lawful marriages” recognized by the states.8

Nevertheless, as one might expect, the absence of a merits-based resolution on Hollingsworth, coupled with language from the Supreme Court’s decision in Windsor, unleashed a new wave of marriage litigation across the country.  Judge Bernard Friedman of the Eastern District of Michigan, in a case challenging the constitutionality of Michigan’s marriage laws, recently described the post-Windsor legal environment this way:

The United States Supreme Court’s recent decision in United States v. Windsor, No. 12-307 (U.S. Jun. 26, 2013), has provided the requisite precedential fodder for both parties to this litigation.  [Marriage law defenders] will no doubt cite to the relevant paragraphs of the majority opinion espousing the state’s “historic and essential authority to define the marital relation.”  They will couch the popular referendum that resulted in the passage of the [state marriage law] as “a proper exercise of the state’s sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.”  After all, what could more accurately embody “the dynamics of state government in the federal system . . . to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other,” than a legitimate vote of the people . . . to preserve their chosen definition of marriage in the fabric of the state constitution.

On the other hand, [same-sex marriage advocates] are prepared to claim Windsor as their own; their briefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003) and now Windsor.  And why shouldn’t they?  The Supreme Court has just invalidated a federal statute on equal protection grounds because it “placed same-sex couples in an unstable position of being in a second-tier marriage.”  Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of “tens of thousands of children now being raised by same-sex couples” as well.9

The case filed in Judge Friedman’s court is just one of several dozen ongoing marriage or marriage-related cases in this post-Windsor era.  These cases span over half the states and are being litigated in both federal and state courts.

Not every lawsuit focuses on the constitutional due process and equal protection questions raised by same-sex marriage advocates in the Hollingsworth and Windsor cases.  For example, several cases in state courts involve same-sex couples asking the state courts to grant them a divorce from their same-sex marriage acquired in another jurisdiction.  One of the cases in federal court in Utah involves polygamy, where the stars from the reality show “Sister Wives” are challenging Utah and Congress’s prohibition of the practice of polygamy as a condition of Utah’s statehood.10  And in Pennsylvania, nearly ten pending cases, spread between state and federal court, raise questions involving same-sex couples ranging from state tax liability, to the recognition of marriage licenses from other jurisdictions, to even a loss of consortium claim in a medical malpractice action.  However, the vast majority of these pending cases in state and federal courts regard the essence of the post-Windsor struggle articulated by Judge Friedman.  Additionally, many of the post-Windsor state and federal cases raise full faith and credit questions, asking whether states are constitutionally required to recognize the same-sex marriage licenses issued by other states.

I. Romer, Lawrence, and Windsor

Judge Friedman predicted that the arguments of same-sex marriage advocates would “be replete with references to the newly enthroned triumvirate of Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003) and now Windsor.”  The arguments and briefs challenging traditional marriage laws across the country frequently reference these cases and assert that their combined force requires the constitutional embrace of same-sex marriage.  But what exactly is this “triumvirate”?  And for what collective proposition do these cases stand?

To many, these three cases have a topical congruence aside from the fact that they are all authored by the same man—Associate Justice Anthony Kennedy.  One newspaper said that “[t]he Windsor opinion caps a trilogy of historic Kennedy opinions affirming gay equality.”11  Another commented that “Windsor marks the third time Justice Kennedy has authored a majority opinion in a groundbreaking gay rights case, and his reasoning makes clear that the prior two cases were not aberrations, as some had speculated.”12

In Romer v. Evans, the Supreme Court invalidated a Colorado law that named a solitary class of persons—those who identify as gay, lesbian, or bisexual—either by “orientation, conduct, practices or relationships,” and excluded them from state antidiscrimination laws.13  The Court concluded that the statute “impos[ed] a broad and undifferentiated disability on a single named group,” and that it was “born of animosity toward the class of persons affected.”14  And because “a bare . . . desire to harm a politically unpopular group,” is not a rational basis,15 the law was declared unconstitutional.

Seven years later, in Lawrence v. Texas, the Supreme Court struck down Texas’ sodomy law, enacted in the 1970’s,16 which punished as a crime “the most private human conduct, sexual behavior, and in the most private of places, the home.”17  Lawrence overruled Bowers v. Hardwick, which held that a similar law in Georgia was not constitutionally infirm.18  Justice Kennedy wrote that the Bowers court “misapprehended the claim of liberty there presented,” finding rather that the “right to liberty under the Due Process Clause gives [citizens] the full right to engage in their conduct without intervention of the government.”19

Justice Kennedy’s opinion in United States v. Windsor spent several introductory pages establishing that “[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States,” and that section 3 of DOMA was unconstitutional because the federal government invaded the “virtually exclusive province of the States.”20  The primacy of “[t]he State’s power in defining the marital relation is of central relevance in this case.”21  Some States have elected to “use[ their] historic and essential authority to define the marital relation” to include same-sex couples, while others have not.22  The federal government thus erred, the Court held, in its “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage” by passing a law whose “avowed purpose and practical effect . . . are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”23

Romer, Lawrence, and Windsor are thus extensively cited and studied to see how the Court may rule on same-sex marriage in the future.  To that end, when you factor in Justice Kennedy’s express reservation in Lawrence (that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”), and the limited holding in Windsor (“This opinion and its holding are confined to those lawful marriages [created or recognized by the states].”), it might be difficult to contend that the “triumvirate” stands for the proposition that same-sex marriage is a fundamental right, or that same-sex marriage must be constitutionally imposed nationwide.  However, Justice Scalia (and others that join his skepticism) isn’t so convinced that the “triumvirate” will not lead to the imposition of nationwide same-sex marriage, by one path or another.24

Nonetheless, the legal footing upon which the “triumvirate” may stand is this:  that a law or classification is unconstitutional if it is motivated solely by animus and lacks any rational explanation for its existence.  The “triumvirate” reveals that to make this determination, the Supreme Court has focused on two queries:  (1) whether a law creates and/or imposes an unusual or novel disability upon the group, and (2) whether the law intrudes into states’ or localities’ traditional sovereign sphere.25

In Romer, the Court stressed both factors as indicating impermissible animus.  There, the law’s lack of precedent (a.k.a., unusual novelty) and breadth (intruding upon the prerogative of local governments) signaled its unconstitutional motive.26  Lawrence, though decided on due process grounds, emphasized the unique novelty of Texas’s sodomy law, as there was “no longstanding history in this country of laws directed at homosexual conduct as a distinct matter,” and “laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private.”27  “It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so.”28

Similarly, in Windsor, Justice Kennedy referenced the novelty of DOMA, as well as its intrusion into the “virtually exclusive province of the States.”29  DOMA “creat[ed] two contradictory marriage regimes within the same State,”30  and “undermine[d] both the public and private significance of state-sanctioned same-sex marriages.”31  The Court concluded that Congress impermissibly enacted DOMA to “interfere with state sovereign choices about who may be married.”32

Thus, the post-Windsor era of cases may be viewed through this lens—whether state marriage laws emanate exclusively from animus, as determined by the two relevant queries.

II. Baker v. Nelson

Apart from the “triumvirate,” traditional marriage advocates counter with precedent of their own—Baker v. Nelson.33  In Baker, a Minnesota clerk denied the issuance of a marriage license to two men.  The men challenged the denial, but the Minnesota Supreme Court found that no fundamental right to marry someone of the same sex exists and that the state’s marriage laws easily survive rational-basis review.34

The men’s appeal to the U.S. Supreme Court presented three questions:  (1) whether they were deprived of the right to marry under the Due Process Clause of the Fourteenth Amendment; (2) whether they were deprived of equal protection under the Fourteenth Amendment; and (3) whether they were deprived of privacy under the Ninth and Fourteenth Amendments.35  The Supreme Court summarily dismissed the appeal, stating:  “The appeal is dismissed for want of a substantial federal question.”36

Though the summary dismissal in Baker is brief, it has important legal implications.  Summary dismissals for want of a substantial federal question are rulings on the merits, and lower courts are “not free to disregard th[ese] pronouncement[s].”37  “[T]he lower courts are bound by summary decisions by [the Supreme] Court until such time as the Court informs them that they are not.”38  And summary dismissals “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by” the dismissal.39

Traditional marriage defenders contend that Baker forecloses current federal challenges since the questions presented in both Baker and post-Windsor challenges are identical.40  But same-sex marriage proponents note that “if the [Supreme] Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.41  The Supreme Court never defined what exactly constituted a “doctrinal development.”

In Windsor, the Second Circuit stated that “[i]n the forty years after Baker, there have been manifold changes to the Supreme Court’s equal protection jurisprudence.”42  As that Court explained:

When Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular.  Classifications based on illegitimacy and sex were not yet deemed quasi-suspect. The Court had not yet ruled that “a classification of [homosexuals] undertaken for its own sake” actually lacked a rational basis.  And, in 1971, the government could lawfully “demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.”43

But the First Circuit concluded in 2012 that, notwithstanding Romer and Lawrence, Baker definitively forecloses arguments that “presume or rest on a constitutional right to same-sex marriage.”44  Four district courts reached the same conclusion.45

But even if “doctrinal developments” exist, the Supreme Court said in Hicks “that the lower courts are bound by summary decisions by this Court ‘until such time as the [Supreme] Court informs them that they are not.’”46  In other words, lower courts don’t get to make the “doctrinal developments” determination themselves.  Marriage defenders thus maintain that since the Supreme Court has yet to expressly overruled Baker, it remains applicable.

But apart from what hasn’t been said by the Supreme Court, does the “triumvirate” represent the type of “doctrinal development” that dismisses Baker’s impact?  The District Court of Nevada recently sought to balance developments against Baker in addressing the pending constitutional challenge to Nevada’s marriage laws:

The equal protection claim is the same in this case as it was in Baker, i.e., whether the Equal Protection Clause prevents a state from refusing to permit same-sex marriages.  There is an additional line of argument potentially applicable in this case based upon Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L.Ed.2d 855 (1996), concerning the withdrawal of existing rights or a broad, sweeping change to a minority group’s legal status.  A Romer-type analysis is not precluded by Baker, because the Romer doctrine was not created until after Baker was decided.  But the traditional equal protection claim is precluded . . . .47

Thus, the District Court of Nevada concluded that Baker, on the one hand, and Romer, on the other hand, establish two different equal protection methodologies.  And while the First Circuit and district courts in Nevada, Hawaii, Florida, and Washington acknowledge Baker as controlling same-sex marriage challenges to state marriage laws, district courts in Michigan,48 Oklahoma,49 Texas,50 Utah,51 Virginia,52 and West Virginia53 found that “doctrinal developments” make Baker no longer applicable.  The 10th Circuit may soon be the first court of appeal to opine on Baker’s applicability.

III. Loving v. Virginia

Another case that factors into the post-Windsor world is Loving v. Virginia, 388 U.S. 1 (1967).  In Loving, the Supreme Court struck down Virginia’s miscegenation law that precluded whites from marrying anyone of color.  Though about 37 states once had these laws, many were repealed and Virginia’s law was one of just 16 remaining at the time.  And to the extent that Loving may have furthered the cause of same-sex marriage at the time, the Baker decision in 1972 (just five years later) seemed to negate it.

Nevertheless, in Windsor, the Supreme Court affirmed that the States’ regulation of domestic relations was its virtually exclusive province “[s]ubject to certain constitutional guarantees.”54  Thus, same-sex marriage advocates include Loving in their repertoire of authority as supporting their right to marry the one they choose.55  Thus far, some federal courts have embraced this view of Loving.56  However, the Loving court stated that marriage is “fundamental to our very existence and survival,” affirming its gendered nature and historical procreative purpose.57  Thus, while Loving appears to stand for a limited right to marry the opposite-sex partner of your choice, whether its ultimate import is broader remains to be seen.

IV. The Post-Windsor Era

With the Supreme Court failing to reach the merits in Hollingsworth last year, there remains no federal appellate court ruling on the constitutionality of state marriage laws.  In an effort to get one, however, and seemingly put the constitutionality of state marriage laws back before the Supreme Court as soon as possible, two things are happening.

First, same-sex marriage proponents filed lawsuits everywhere—not just in federal circuits thought most friendly to their cause.  Of the thirteen federal circuits, ten are available for same-sex marriage challenges,58 and cases have been filed in all of them.

Second, advocates for same-sex marriage are moving with great speed and seeking quick trial court dispositions.  As examples, one case instituted a trial on February 25, 2014—a mere 8 months after Windsor was decided.59  Another case completed summary judgment briefing just over 3 months after it was filed.60  Appealable rulings by federal district courts were made in ten cases,61 oral arguments have been held or scheduled in the 4th, 9th, and 10th Circuits, and many other cases are soon expected to produce appealable rulings on a variety of dispositive motions, meaning that several appeals will be docketed yet in 2014.

And although the litigation is voluminous and geographically diverse, the nature of the various cases, and the arguments presented in each one, do not vary significantly.  The arguments made in the post-Windsor federal challenges are primarily threefold:  (1) substantive due process; (2) equal protection; and (3) full faith and credit.

A. Substantive Due Process

Harris v. McDonnell  is a class action lawsuit filed on behalf of two same-sex couples and “all others similarly situated.”62  The suit contends that “[e]ach member of the Plaintiff Class either has been unable to marry his or her same-sex partner in Virginia because of the marriage ban or validly married a partner of the same sex in another jurisdiction but is treated as a legal stranger to his or her spouse under Virginia law.”63  Until recently, the class action approach to marriage litigation has not been significantly utilized.  However, a couple of other class action cases have been filed in other jurisdictions.64

The Harris plaintiffs have since intervened and joined the appeal in the Fourth Circuit in Bostic v. Rainey, a similar non-class action case from the Eastern District of Virginia involving two same-sex couples.  The plaintiffs in both of these Virginia cases claim that their inability to marry someone of the same sex deprives them of substantive due process under the Fourteenth Amendment.65  Advocates of traditional marriage contend that there exists no fundamental right to same-sex marriage, and that one should not be recognized since same-sex marriage is not deeply rooted within the history and traditions of our nation.66  And the Supreme Court said as much in Windsor, acknowledging that  “[i]t seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.”67

However, plaintiffs in Harris and Bostic contend that they are not advocating for the creation or recognition of a new fundamental right, but to exercise the existing fundamental right to marry, to wit:

The right to marry the unique person of one’s choice and to direct the course of one’s life in this intimate realm without undue government restriction is one of the fundamental liberty interests protected by the Due Process Clause of the Fourteenth Amendment.  Defendants’ actions to enforce the marriage ban directly and impermissibly infringe Plaintiffs’ choice of whom to marry, interfering with a core, life-altering, and intimate personal choice.68

And this claim for a fundamental right to marry the person of one’s choosing is not unique to Virginia.  The claims to a fundamental right to marry a person of the same sex are prolific, as they have been made in almost every single pending federal lawsuit.  For example, in the Western District of Wisconsin, plaintiffs claim that the marriage laws deprive them of “the fundamental right to marry the person of one’s choice and related constitutional rights to liberty, dignity, autonomy, family integrity, and association.”69  In the Eastern District of Michigan, plaintiffs claim:

 

If marriage is a fundamental right, then logic and emerging Supreme Court precedent dictate that the legitimacy of two adults’ love for one another is the same in the eyes of the law regardless of sexual orientation and that the rights of consenting adults to marry and to form a family, should they choose to do so, do not depend on sexual orientation.70

Thus, plaintiffs argue that the martial desires of same-sex couples are encompassed within the existing fundamental right to marry, and do not encompass a new fundamental right.

Potentially obstructing the recognition of a fundamental right for same-sex couples to be issued marriage licenses, however, lays several obstacles.  First, in identifying fundamental rights, the Due Process Clause of the Fourteenth Amendment “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.”71  “The right to marry the unique person of one’s choice,” in those express terms, has never been deeply rooted within our country’s history and tradition, even within the realm of opposite-sex couples.  Restrictions on who one may marry have always included, e.g., age and consanguinity, so any right to marry per se the “person of one’s choice” is arguably non-existent, much less deeply rooted.

Second, the right to marry cannot seemingly survive in this broad, abstract manner, but requires “careful description” resting on “concrete examples” of how the right has been instantiated.72  Even in Lawrence, where the right to sexual intimacy was arguably broadened, it was nonetheless restricted by age to consenting adults.73  To date, every Supreme Court case involving the fundamental right to marry regarded opposite-sex couples, and none of those cases even present dictum that expressly relates to same-sex couples.74

Third, whether same-sex relationships fit within the fundamental right to marry is at odds with Baker.

Finally, scholars contend that it has been 40 years since the Supreme Court last recognized a new fundamental right.75  Reversing the gravity of this trend may be difficult to do.  Nonetheless, whether same-sex marriage is enveloped within the fundamental right to marry is an active question, as the most recent federal district courts to opine on the matter have been unable to reach a consensus.76

B. Equal Protection

In the cases making equal protection challenges, same-sex couples claim that the state’s enforcement and defense of its laws defining marriage as the union of one man and one woman violate the Equal Protection Clause of the Fourteenth Amendment.77

In most of the post-Windsor cases, the equal protection claims regard the categories of both sex (or gender) and sexual orientation.78  But before March 26, 2013, the argument that marriage laws discriminated unconstitutionally based on sex or gender was virtually dead.  As stated in 1999 by the Vermont Supreme Court, “the marriage laws are facially neutral; they do not single out men or women as a class for disparate treatment, but rather prohibit men and women equally from marrying a person of the same sex.”79  The Vermont Supreme Court also concluded that “there is no discrete class subject to differential treatment solely on the basis of sex; each sex is equally prohibited from precisely the same conduct.”80  The only contrary authority, from any appellate court, came from the Hawaii Supreme Court in 1993.81  Prior to Windsor, all other federal and state courts rejected the proposition that marriage laws discriminate on the basis of gender or sex.82

On March 26, 2013, Justice Anthony Kennedy, during the oral argument in Hollingsworth v. Perry, reignited the discussion by asking whether marriage laws implicate “gender-based classification[s],” and noting that it is “a difficult question that I’ve been trying to wrestle with.”83

And if Justice Kennedy is still wrestling with that question, then notwithstanding the authorities against the proposition that marriage laws discriminate on the basis of sex, same-sex marriage advocates will continue to make that argument.84  However, only the District Court of Utah, in its post-Windsor challenge, has determined that “the [marriage] law differentiates on the basis of sex” and “discriminates on the basis of sexual identity without a rational reason to do so.”85  Thus, apart from this single conclusion, the real equal protection struggle in these cases seems to regard sexual orientation and determining if marriage laws unconstitutionally discriminate on the basis of sexual orientation.

In virtually every case, same-sex marriage advocates contend that sexual orientation should be analyzed under heightened scrutiny.86  However, strict scrutiny has been applied only to laws regarding race, alienage, or national origin classifications.87  And only classifications based on sex or illegitimacy have received intermediate scrutiny.88

Moreover, the Supreme Court has used only rational basis review with sexual orientation classifications.89  In Windsor, though the Second Circuit applied intermediate scrutiny for sexual orientation, the Supreme Court did not.90  The First Circuit also rejected the application of intermediate scrutiny for sexual orientation in its DOMA case.91  Indeed, before the Second Circuit’s decision in Windsor, every federal circuit that addressed sexual orientation classifications applied rational basis review.92

Nevertheless, even assuming the application of rational basis review, it is unclear what analysis should be deployed:  a traditional or classic equal protection analysis, vs. courts looking only at the animus-based approach grounded within Romer, vs. applying both.93

For advocates of same-sex marriage, the “triumvirate” approach appears to be the most popular to this point.  As an example, in one brief, same-sex marriage advocates contend that in light of Romer, Lawrence, and Windsor, there is no principled or rational basis for arguing that gays and lesbians do not have the same rights as heterosexuals.94

Predictably, the arguments of marriage defenders focus on the fact that marriage laws between one man and one woman, created long ago, cannot be said to have been enacted with an animosity towards same-sex couples.  The Virginia Attorney General argued that:

The common law definition of marriage as between a man and a woman, husband and wife,—which the 1975 legislation did not change—in turn is too old to have been the product of bare animus because, as the Windsor majority noted, no one would have thought same-sex marriage possible at the time the definition was adopted.95

This argument, of course, accompanies a plethora of arguments defending the importance, necessity, or rational basis of laws defining marriage as between one man and one woman.96  Many of these arguments are captured in resources cited by Justice Alito in his Windsor dissent,97 as well as many of the briefs filed by traditional marriage defenders in pending cases.98

But same-sex marriage advocates are sure to note that unconstitutional animus may not necessarily contain “malicious ill will.”99  Instead of a “bare . . . desire to harm a politically unpopular group,”100 “negative attitudes” may suffice,101 as well as an “instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”102

Traditional marriage advocates would also suggest that while nobody disputes that prevailing attitudes have been negative towards certain groups over the course of our country’s history (religious, racial, or otherwise), to prevail in their claims, advocates of same-sex marriage would seemingly need to demonstrate that, as to marriage, both the incepting and continuing purposes behind all marriage laws, and not just recent amendments, possess no legitimate reason (rational basis) beyond a “bare . . . desire to harm a politically unpopular group.”  However, most of the recent district court opinions on the constitutionality of state marriage laws have not found them to survive rational basis review.  Whether the courts of appeal will view matters the same way remains to be seen.

C. Full Faith and Credit & Section 2 of DOMA

Palladino v. Corbett, pending in the Eastern District of Pennsylvania, is demonstrative of the full faith and credit issues raised in many of the pending cases across the country.  Filed on Sept. 26, 2013, the plaintiffs are a same-sex couple with a marriage license from Massachusetts.  They challenge the constitutionality of Pennsylvania’s refusal to recognize their legal relationship.103  Similar claims are pending in a variety of other cases across the country.104  Palladino and a handful of other cases, like Bradacs v. Haley, No. 13-cv-02351 (D. S.C.), present only the exclusive question of whether one state must recognize the same-sex marriage of another state.  However, most of the post-Windsor lawsuits already referenced are hybrid cases, presenting both (1) a claim for the issuance of marriage licenses to some plaintiffs, and (2) a claim that the existing marriage licenses of other plaintiffs from different jurisdictions be recognized by the state at issue.

As to the claims that existing same-sex marriages be recognized, two unique issues are presented in these challenges.  First regards whether section 2 of DOMA was a valid exercise of Congress’s Article IV authority.  Section 2, unaddressed by Windsor, reads:

Section 2. Powers reserved to the states

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

The Full Faith and Credit Clause of the U.S. Constitution provides as follows:

Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.105

The second sentence provides the basis for section 2 of DOMA.  When passed, some scholars believed that section 2 was a valid exercise of Congress’s power, though ultimately unnecessary as it merely affirmed the status quo—that states did not need to recognize same-sex marriages from other states.106  Others believed that section 2 of DOMA was an unconstitutional exercise of Congress’s power.107

If section 2 of DOMA is upheld as constitutional, then the efforts to force states to recognize the same-sex marriages of other states may be short-lived.  But if section 2 of DOMA is declared unconstitutional, that does not settle the ultimate question of whether states must recognize every marriage license of every other state.  For within the realm of legal statuses affirmed by licenses, there has never been a quid pro quo.  Lawyers do not expect an automatic right to practice law in one state with a license from another.  The same is true even when addressing a fundamental right, like the right to bear arms.  Within Virginia, for example, a resident that obtains a concealed handgun permit may carry such a weapon about the person and hidden from common observation.108  If one crosses into Maryland, however, their Virginia license means nothing and carrying a concealed handgun without a Maryland concealed carry license is a jailable offense.109  Thus, whether section 2 of DOMA is an unconstitutional exercise of Congress’s authority, or whether a pure application of the Full Faith and Credit Clause of the U.S. Constitution requires states to recognize other states’ marriage licenses remains to be seen.

On April 14, 2014, the Southern District of Ohio ruled that Ohio was required to recognize same-sex marriage licenses issued by California, Massachusetts, and New York.110  That same court reached a similar ruling about a same-sex marriage license from Maryland.111    However, neither of those decisions addressed the ongoing validity of section 2 of DOMA, nor the pure questions of full faith & credit regarding interstate licensure recognition, as the court concluded in both cases that “Section 2 of DOMA is not specifically before [the] Court.”  Similarly, though a recognition question was presented to it, the Western District of Kentucky did not address the constitutionality of section 2 of DOMA in issuing its decision.112   However, the Northern District of Oklahoma concluded that its plaintiffs lacked standing to challenge section 2 of DOMA because it was state law, and not federal law, that caused the plaintiffs’ alleged injuries.  In Bishop, the court concluded that “Section 2 is an entirely permissive federal law,” and that “[i]t does not mandate that states take any particular action, does not remove any discretion from states, does not confer benefits upon non-recognizing states, and does not punish recognizing states.”113

Complicating these questions are the grey areas of full faith and credit applied to judgments, on the one hand, and public acts, on the other hand.  The Supreme Court long ago recognized and explained the necessary distinction between judgments and acts (or statutes) with respect to the Full Faith and Credit Clause.  Indeed, the Court has recognized “that there are some limitations upon the extent to which a state will be required by the full faith and credit clause to enforce even the judgment of another state, in contravention of its own statutes or policy.”114

But with respect to statutes or acts, the consideration for sovereignty is even greater, because “[a] rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own.”115  And the Court has reaffirmed that while the purpose of the Full Faith and Credit Clause:

[W]as to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states, the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.”116 

Thus statutes, as opposed to judgments, historically receive radically different treatment under the Full Faith and Credit Clause.117

As the appeals of the many recognition cases progress, the opinions of the courts of appeal should address more substantively these important questions and better define the shades of grey that presently define them.  On the other hand, if same-sex marriage is declared to be a fundamental right under the U.S. Constitution, then recognition questions could become moot.

D. State Court Cases

State court cases demanding a right to same-sex marriage, or some form of recognition of a same-sex relationship, exist in several states across the country.  While some of these cases have the potential to be significant, their importance is presently overshadowed by the concurrent federal litigation.

Several of the pending state cases are same-sex divorce cases.  Same-sex divorce cases are nothing new and were an expected legal phenomenon once Ontario began issuing marriage licenses to same-sex couples from the U.S. in 2002.  Prior to the Windsor decision, many states had same-sex dissolution claims filed in their courts, to wit:  Connecticut (Rosengarten v. Downes), Indiana (Ranzy v. Chism), Iowa (Brown v. Perez), Maryland (Port v. Cowan), Michigan (Dubey v. Rose), Missouri (Sparks v. Sparks), Nebraska (Mueller v. Pry), New Jersey (Hammond v. Hammond), New Mexico (Haught v. Carrejo), New York (Sharma v. Agrawal), Oklahoma (O’Darling v. O’Darling), Rhode Island (Chambers v. Ormiston), and Wyoming (Christiansen v. Christiansen).

However, these cases continue to be filed as more and more same-sex couples acquire marriage licenses but later, like many couples, see their relationships sour.  The arguably leading same-sex divorce cases are pending currently before the Texas Supreme Court—In the Matter of J.B. and H.B. (No. 11-0024) and Texas v. Naylor & Daly (No. 11-0114).  Both same-sex couples acquired marriage licenses in Massachusetts.  Naylor and Daly successfully obtained a divorce in Texas state court, while J.B. and H.B. did not.  The central question in these cases is whether the Texas state courts can exercise subject matter jurisdiction over a legal relationship that state law expressly does not recognize.  This same question is also pending in Alabama (Richmond v. Richmond), Indiana (Wetli v. Shaffer), Kentucky (Romero v. Romero), Mississippi (Czekala-Chatham v. Melancon), Nebraska (Nichols v. Nichols), Tennessee (Dayandante v. Dayandante), and perhaps other jurisdictions.

Of course, not all same-sex couples that have marriage licenses from other jurisdictions are looking to divorce.  Many are asking their home states to recognize that license.  For example, in the Orphans Court of Northhampton County, Pennsylvania, the surviving partner of a same-sex couple with a marriage license from Connecticut is challenging the Commonwealth’s imposition of an estate tax in In re Estate of Catherine Burgi-Rios (No. 2012-1310).  In Nelson v. Kansas Department of Revenue (13-c-001465), same-sex couples are seeking the right to file joint tax returns.  And in Kentucky, the existence of a Vermont civil union is being used as the basis for asserting the spousal privilege in a murder case in Kentucky v. Cleary (No. 11CR3329). And though brought in federal court under diversity jurisdiction, Lohr v. Zehner, 2:12-cv-00533 (M.D. Al.), is a state law wrongful death claim seeking the recognition of a same-sex survivor as a spouse under Alabama law.

Beyond the recognition of existing marriage licenses from other jurisdictions, other lawsuits are demanding some form of state recognition of unlicensed same-sex relationships.  In the Alaska Supreme Court, a relationship recognition question is pending in a workers’ compensation context.  In Harris v. Millennium Hotel (No. S15230), a surviving same-sex partner of a deceased employee is challenging the state’s reservation of death benefits in workers’ compensation matters to only opposite-sex spouses in accordance with state law.  A similar claim is pending in the District Court of Lewis and Clark County, Montana, in Donaldson v. Montana (Cause No. BDV-2010-702), where several same-sex couples seek not only the right to be included in the state’s workers’ compensation laws, but several other statutory schemes.

In Pennsylvania, a host of same-sex relationship recognition cases are pending in state court.  In Ankey v. Alleghany (No. GD-13-005851), the Court of Common Pleas of Alleghany County is considering a claim that employment benefits be extended to same-sex partners.  In Wolf v. Association of Podiatric Medicine and Surgery (No. 130301079), a cohabiting same-sex couple submitted a claim for loss of consortium regarding a foot surgery.  In the Pennsylvania Court of Appeals, a common law same-sex marriage is being asserted in a claim objecting to the imposition of estate taxes in Nixon v. Pennsylvania Department of Revenue.

Finally, several of the cases pending in state courts are virtually identical to many of the cases pending in federal court.  Same-sex couples are claiming rights, under their state and/or federal constitutions, to have marriage licenses issued to them.  These cases are pending in Arkansas (Wright v. Arkansas, Cir. Ct. of Pulaski Co., 60CV-13-2662), Colorado (Brinkman v. Long, Dist. Ct., Adams Co., No. 2013CV032572; McDaniel-Miccio v. Hickenlooper, Dist. Ct., City and Co. of Denver, 2014CV030731), Florida (Paretov. Ruvin, Cir. Ct., Eleventh Jud. Cir. for Miami-Dade Co., 2014-1661-CA-01), and Wyoming (Courage v. Wyoming, First Jud. Dist. Ct., Co. of Laramie, Docket 182, No. 262).

The cases referenced above are not an exhaustive list of the cases pending in state courts across the country.  All-in-all, however, though not receiving the same level of media and public attention as the plethora of pending federal cases, the state courts across the country are brewing with litigation over the recognition and validity of same-sex relationships.

Conclusion

Shortly after the publication of this article, rulings from many federal courts of appeal are expected to further change and define the legal landscape of the arguments and legal issues articulated herein.  The 10th Circuit will rule on cases from Utah and Oklahoma, the 9th Circuit will rule on a case from Nevada, the 4th Circuit will rule on cases from Virginia, the 5th Circuit will rule on a case from Texas, and the 6th Circuit will rule on cases from Ohio, Kentucky, Tennessee, and Michigan.  Appeals have not been docketed in the 1st, 3rd, 7th, 8th, and 11th Circuits, but they should be in the near future.

Clearly, marriage will remain a hot topic of federal and state litigation in the foreseeable future.  These cases, and others, may determine important issues, such as if Baker forecloses marriage law opinions by lower courts and if the “triumvirate” of Romer, Lawrence, and Windsor requires the result that same-sex marriage advocates are demanding.  Perhaps the next Supreme Court term will see another marriage case.

*Austin R. Nimocks serves as senior counsel for Alliance Defending Freedom at its Washington, D.C., Regional Service Center. Nimocks earned his J.D. from the Baylor University School of Law in Waco, Texas. He is admitted to the bars of the District of Columbia, Texas, Mississippi, Alabama, Arizona, the U.S. Supreme Court, and the U.S Courts of Appeal for the 1st, 3rd, 4th, 5th, 6th, 9th, 10th, and D.C. Circuits, and he has also appeared before various federal and state courts around the country.
**This article was originally published as a Federalist Society white paper.  All information is current as of May 28, 2014. 

Endnotes

1  Pub. L. No. 104-199, 110 Stat. 2419 (1996).

2  Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).

3  Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).

4  Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).

5  United States v. Windsor, 133 S. Ct. 2675 (2013).

6  Pub. L. No. 104-199, § 3, 110 Stat. 2419 (1996).

7  Windsor, 133 S. Ct. at 2691-92.

8  Windsor, 133 S. Ct. at 2696.

9  Opinion and Order Denying Defendants’ Motion to Dismiss Amended Complaint, DeBoer v. Snyder, 2013 WL 3466719, at *2 (E.D. Mich. July 1, 2013) (internal brackets and citations omitted).

10  Brown v. Buhman, 947 F. Supp. 2d 1170 (D. Utah 2013).

11  See Garrett Epps, Kennedy’s Marriage Ruling is About Gay Rights, Not States’ Rights, The Atlantic, June 26, 2013, http://www.theatlantic.com/national/archive/2013/06/kennedys-marriage-ruling-is-about-gay-rights-not-states-rights/277251/.

12  See Julie A. Nice, And Marriage Makes Three: A Gay Rights Trilogy Secures a Legacy, Huffington Post, July 3, 2013, http://www.huffingtonpost.com/julie-a-nice/and-marriage-makes-three-_b_3537739.html.

13  Romer v. Evans, 517 U.S. 620, 624 (1996) (internal quotation marks omitted).

14  Id. at 632, 634.

15  See, e.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).

16  Lawrence v. Texas, 539 U.S. 558, 570 (2003).

17  Id. at 567.

18  Bowers v. Hardwick, 478 U.S. 186 (1986).

19  Lawrence, 539 U.S. at 567, 578.  Proponents of same-sex marriage contend that the decision of whom to marry is at the core of individual autonomy and personal liberty protected by LawrenceSee, e.g., Brief for Respondents at 13-14, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144), 2013 WL 648742. Conversely, advocates of traditional marriage rely heavily upon Justice Kennedy’s closing note from Lawrence that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”  Lawrence, 539 U.S. at 578.

20  Windsor, 133 S. Ct. at 2689-90, 2691 (internal quotation marks omitted).

21  Id. at 2692.

22  Id.

23  Id. at 2693.

24  “The penultimate sentence of the majority’s opinion is a naked declaration that ‘[t]his opinion and its holding are confined’ to those couples ‘joined in same-sex marriages made lawful by the State.’  Ante, at 2696, 2695.  I have heard such ‘bald, unreasoned disclaimer[s]’ before. Lawrence, 539 U.S., at 604, 123 S. Ct. 2472.”  Windsor, 133 S. Ct. at 2709 (Scalia, J., dissenting).

25  This second factor is not overtly present in Lawrence, as the criminal law has historically operated at a state level.  In like vein, it can be argued that this factor is irrelevant to marriage laws— the “virtually exclusive province of the States.”  Nonetheless, because of this factor’s overt presence in both Romer and most recently Windsor, analyzing the “triumvirate” necessitates its inclusion.

26  Romer v. Evans, 517 U.S. 620, 632-33 (1996).

27  Lawrence, 539 U.S. at 568, 569.

28  Id. at 570.

29  Windsor, 133 S. Ct. at 2691.

30  Id. at 2694.

31  Id.

32  Id. at 2693.

33  Baker v. Nelson, 409 U.S. 810 (1972).

34  Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971) (en banc).

35  Jurisdictional Statement at 3, Baker v. Nelson, 409 U.S. 810 (1972) (No. 71-1027).

36  Baker, 409 U.S. at 810.

37  Hicks v. Miranda, 422 U.S. 332, 343-45 (1975).

38  Id. at 344-45 (internal quotation marks omitted) (internal alterations omitted).

39  Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam).

40  See, e.g., Bostic v. Rainey, 2014 WL 561978, at *9 (E.D. Va. Feb. 13, 2014) (“There is also no dispute asserted that questions presented in Baker are similar to the questions presented here.”); McGee v. Cole, 2014 WL 321122, at *9 (S.D. W. Va. Jan. 29, 2014) (“the Court declines to find that differences in the facts of each case or the issues presented warrant nonapplication of Baker to this case.”).

41  Hicks, 422 U.S. at 344 (quotation omitted) (emphasis added).

42  Windsor v. United States, 699 F.3d 169, 178-79 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013).

43  Id. (internal citations omitted).  The federal courts, including the Second Circuit in Windsor, did not equate the questions presented regarding the challenges to the federal definition of marriage to be controlled by Baker.  “Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.”  Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012).  “The question [regarding . . .] Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states.”  Windsor, 699 F.3d at 178.  See also Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 308-09 (D. Conn. 2012); Dragovich v. U.S. Dep’t of Treasury, 872 F. Supp. 2d 944, 952 (N.D. Cal. 2012); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.5 (N.D. Cal. 2012); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 872-73 (C.D. Cal. 2005), aff’d in part, vacated in part on other grounds, and remanded, 447 F.3d 673 (9th Cir. 2006).

44  Massachusetts, 682 F.3d at 8.

45  See Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1003 (D. Nev. 2012), appeal docketed, No. 12-17668 (9th Cir. Dec. 4, 2012); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1087 (D. Haw. 2012); Wilson v. Ake, 354 F. Supp. 2d 1298, 1304-05 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004).

46  Hicks, 422 U.S. at 344-45 (quoting Doe v. Hodgson, 478 F.2d 537, 539, cert. denied sub nom (1973)). Doe v. Brennan, 414 U.S. 1096 (1973) (emphasis added) (internal alterations omitted)).

47  Sevcik, 911 F. Supp. 2d at 1003.

48  DeBoer v. Snyder, 2014 WL 1100794, at *15 n.6 (E.D. Mich. Mar. 21, 2014).

49  Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1277 (N.D. Okla. 2014).

50  De Leon v. Perry, 2014 WL 715741, at *10 (W.D. Tex. Feb. 26, 2014).

51  Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1195 (D. Utah 2013).

52  Bostic v. Rainey, 2014 WL 561978, at *10 (E.D. Va. Feb. 13, 2014).

53  McGee v. Cole, 2014 WL 321122, at *10 (S.D. W. Va. Jan. 29, 2014).

54  Windsor, 133 S. Ct. 2675, 2680 (2013) (citing Loving v. Virginia, 388 U.S. 1 (1967)).

55  See, e.g., Brief for Appellees at 27, Bostic v. Rainey, Nos. 14-1167(L), 14-1169, 14-1173 (4th Cir. Apr. 11, 2014), ECF No. 129.

56  See, e.g., De Leon v. Perry, 2014 WL 715741, at *19 (W.D. Tex. Feb. 26, 2014).

57  Loving, 388 U.S. at 12. 

58  I exclude the Second and D.C. Circuits since all of the jurisdictions within them embrace same-sex marriage.  The Federal Circuit is excluded for subject matter jurisdiction.  Puerto Rico is part of the First Circuit and has a pending case.  See Complaint, Conde-Vidal v. Rius-Armendariz, No. 3:14-cv-01253 (D. P.R. Mar. 25, 2014), ECF No. 1.

59  Notice to Appear, DeBoer v. Snyder, No. 12-cv-10285 (E.D. Mich. July 1, 2013), ECF No. 90.  Advocates in another case requested a trial on February 17, 2014.  See Joint Case Management Plan at 17, Whitewood v. Corbett, No. 13-cv-01861 (M.D. Pa. Oct. 4, 2013), ECF No. 38.

60  Docket Report, Harris v. McDonnell, No.13-cv-00077 (W.D. Va. 2013) (showing Summary and Complaint issued on Aug. 1, 2013 and Reply to Response to Motion for Summary Judgment filed on Nov. 7, 2013).

61  See Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013); Kitchen, 961 F. Supp. 2d at 1181; Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1252 (N.D. Okla. 2014); Bourke v. Beshear, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, 2014 WL 561978 (E.D. Va. Feb. 13, 2014); Lee v. Orr, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) (unpublished); De Leon, 2014 WL 715741; Tanco v. Haslam, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014); DeBoer, 2014 WL 1100794; Henry v. Himes, 1:14-cv-00129 (S.D. Ohio Apr. 14, 2014).

62  Complaint for Declaratory and Injunctive Relief at 1, Harris v. McDonnell, No. 13-cv-00077 (W.D. Va. Aug. 1, 2013), ECF No. 1.

63  Id. at 17.

64  See, e.g., De Leon v. Perry, 13-cv-00982 (W.D. Tex.).

65  Id. at 29-31; Plaintiffs’ First Amended Complaint for Declaratory, Injunctive, and Other Relief at 16, Bostic v. Rainey, 2:13-cv-00395 (E.D. Va. Sept. 3, 2013), ECF No. 18.

66  See, e.g., Memorandum of State Defendants in Opposition to Plaintiffs’ Motion for Summary Judgment, Harris v. McDonnell, No.13-cv-00077 (W.D. Va. Oct. 24, 2013), ECF No. 73; Appellant McQuigg’s Opening Brief, Bostic v. Rainey, Nos. 14-1167(L), 14-1169, 14-1173 (4th Cir. Mar. 28, 2014), ECF No. 75.

67  United States v. Windsor, 133 S. Ct. 2675, 2689 (2013).

68  Complaint for Declaratory and Injunctive Relief at 30, Harris v. McDonnell, No.13-cv-00077 (W.D. Va. Aug. 1, 2013), ECF No. 1.

69  See Complaint for Declaratory and Injunctive Relief at 25, Wolf v. Walker, No. 3:14-cv-00064 (W.D. Wis. Feb. 3, 2014), ECF No. 1.

70  Plaintiffs’ Brief in Opposition to State Defendants’ Motion for Summary Judgment at 1-2, DeBoer v. Snyder, No. 12-cv-10285 (E.D. Mich. Sep. 9, 2013), ECF No. 76.  See also Complaint for Declaratory and Injunctive Relief at 27, Forum for Equality Louisiana, Inc. v. Barfield, No. 2:14-cv-00327 (E.D. La. Feb. 12, 2014) (“Defendants’ actions infringe Plaintiffs’ fundamental right to marry by penalizing Plaintiffs based on their exercise of their constitutionally protected choice to marry the person they love.”), ECF No. 1.

71  Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (internal quotation marks omitted).

72  Id. at 721-22.

73  Lawrence v. Texas, 539 U.S. 558, 578 (2003).

74  See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987).

75  See, e.g., Erwin Chemerinsky, In Defense of Roe and Professor Tribe, 42 Tulsa L. Rev. 833, 833 (2007) (“Roe was the last time the Court recognized a new fundamental right.”).

76  Compare Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012), with Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 991-93 (N.D. Cal. 2010).  See also Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1204 (D. Utah 2013) (“The court therefore finds that the Plaintiffs have a fundamental right to marry that protects their choice of a same-sex partner.”); De Leon v. Perry, 2014 WL 715741, at *20 (W.D. Tex. Feb. 26, 2014) (“By denying Plaintiffs . . . the fundamental right to marry, Texas denies their relationship the same status and dignity afforded to citizens who are permitted to marry.”); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 978-82  (S.D. Ohio 2013) (recognizing a fundamental right to “marriage recognition” or to “remain married”); Lee v. Orr, 2014 WL 683680, at *1 (“There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry.”).

77  See, e.g., Amended Complaint for Declaratory and Injunctive Relief at 7-10, DeBoer v. Snyder, No. 12-cv-10285 (E.D. Mich. Oct. 3, 2013), ECF No. 38.  Michigan, like most states, recognizes marriage only between one man and one woman.  Mich. Const. art. I, § 25.

78  See, e.g., Complaint for Declaratory and Injunctive Relief at 18-23, Kitchen v. Herbert, No. 2:13-cv-00217 (D. Utah Mar. 25, 2013), ECF No. 2.

79  Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999).

80  Id.

81  Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), reconsideration granted in part, 875 P.2d 225 (Haw. 1993).  In Baehr, a two judge plurality expressed the view that marriage laws constituted sex discrimination under the state constitution.  Id. at 59-63.  That view was later superseded by an amendment to the Hawaii Constitution.  See Haw. Const. art. I, § 23.

82  See Wilson v. Ake, 354 F. Supp. 2d 1298, 1307-08 (M.D. Fla. 2005); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 876-77 (C.D. Cal. 2005); In re Kandu, 315 B.R. 123, 143 (Bankr. W.D. Wash. 2004); In re Marriage Cases, 183 P.3d 384, 436-40 (Cal. 2008); Dean v. Dist. of Columbia, 653 A.2d 307, 363 n.2 (D.C. 1995) (Steadman, J., concurring); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973); Conaway v. Deane, 932 A.2d 571, 585-602 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1, 10-11 (N.Y. 2006) (plurality); id. at 20 (Graffeo, J., concurring); Andersen v. King Cnty., 138 P.3d 963, 988 (Wash. 2006) (plurality opinion); Singer v Hara, 522 P.2d 1187, 1191-92 (Wash. Ct. App. 1974).

83  Transcript of Oral Argument at 13-14, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144).

84  See, e.g., Complaint for Declaratory and Injunctive Relief at 33-35, Majors v. Horne, 2:14-cv-00518 (D. Ariz. Mar. 12, 2014), ECF No. 1.

85  Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1215 (D. Utah 2013).

86  See, e.g., First Amended Complaint, Fisher-Borne v. Smith, 1:12-cv-589 (M.D.N.C. Jul. 19, 2013), ECF No. 40.

87  See, e.g., City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).  But see SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 481 (9th Cir. 2014) (finding that “Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.”).

88  See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988).

89  See, e.g., Romer v. Evans 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2013). 

90  See United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (quoting United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 533 (1973)).

91  Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 9 (1st Cir. 2012) (“[n]othing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer—a case that could readily have been disposed by such a demarche.”).

92  See, e.g., id.; Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006); Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950–51 (7th Cir. 2002); Citizens for Equal Protection v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006); Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126, 1132 (9th Cir. 1997); Price-Cornelison v. Brooks, 524 F.3d 1103, 1114 (10th Cir. 2008); Rich v. Sec’y of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984); Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989).

93  See Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1003 (D. Nev. 2012), appeal docketed, No. 12-17668 (9th Cir. Dec. 4, 2012).

94  See, e.g., Plaintiffs’ Brief in Opposition to the Motion to Dismiss of Defendant Donald Petrille, Jr. at 15-17, Whitewood v. Corbett, No. 13-cv-01861-JEJ (M.D. Pa. Oct. 21, 2013), ECF No. 56; see also Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction at 37-41, Obergefell v. Wymyslo, No. 13-cv-00501 (S.D. Ohio Oct. 29, 2013), ECF No. 53.

95  Memorandum of State Defendants Robert F. McDonnell and Janet M. Rainey in Opposition to Plaintiffs’ Motion for Summary Judgment at 29, Harris v. McDonnell, No. 13-cv-00077 (W.D. Va. Oct. 24, 2013) (citation omitted), ECF No. 73.  See also Defendant Petrille’s Brief in Support of Motion to Dismiss Plaintiffs’ Complaint for Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6), and Failure to Join Parties Under Fed. R. Civ. P. 12(b)(7) and 19 at 30, Whitewood v. Corbett, No. 13-cv-01861 (M.D. Pa. Oct. 7, 2013), ECF No. 41 (“The two factors at the heart of Romer, Lawrence, and Windsor strongly support the Commonwealth’s power to retain its traditional definition of marriage.  First, the traditional definition of marriage is hardly a novel disability, but a centuries-old institution. . . . Far from an aberrant, novel disability, Pennsylvania’s definition of marriage, like so many other provisions of Pennsylvania law, is consistent.”).

96  For example, marriage laws promote raising children by their biological parents.  Biological parents are uniquely linked to their offspring and can help them understand their genetic traits and lineages.  Blood lines matter and are celebrated throughout domestic relations laws.  Additionally, traditional marriages guarantee that one of the parents will be the same sex of all children born to that union, thus giving each child a role model of both the same sex and opposite sex.

97  United States v. Windsor, 133 S. Ct. 2675, 2715 (2013)  (Alito, J., dissenting) (citing S. Girgis, R. Anderson, & R. George, What is Marriage? Man and Woman: A Defense 53–58 (2012); John Finnis, Marriage: A Basic and Exigent Good, 91 The Monist 388, 398 (2008)).

98  See, e.g., Appellant’s Principal Brief, Smith v. Bishop, Nos. 14-5003, 14-5006 (10th Cir. Feb. 24, 2014), ECF No. 01019207411; Appellant McQuigg’s Opening Brief, Bostic v. Rainey, Nos. 14-1167(L), 14-1169, 14-1173 (4th Cir. Mar. 28, 2014), ECF No. 75; Brief of Appellants Gary R. Herbert and Sean D. Reyes, Kitchen v. Herbert, No. 13-4178 (10th Cir. Feb. 3, 2014).

99  Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring).

100  Windsor, 133 S. Ct. at 2693 (citation and quotation marks omitted); Romer, 517 U.S. 620, 634 (1996) (citation and quotation marks omitted).

101  City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985).

102  Garrett, 531 U.S. at 374 (Kennedy, J., concurring).

103  Complaint for Declaratory and Injunctive Relief at 16-17, Palladino v. Corbett, No. 13-cv-05641 (E.D. Pa. Sept. 26, 2013), ECF No. 1.

104  See, e.g., Plaintiffs’ First Amended Complaint at 8-11, Bishop v. United States, No. 04-cv-848-TCK-TLW (Okla. Aug. 10, 2009); Class Action Complaint for Declaratory and Injunctive Relief at 38, Harris v. McDonnell, No. 13-cv-00077 (W.D. Va. Aug. 1, 2013), ECF No. 1; Verified Complaint for Declaratory, Injunctive, and Other Relief at 15-17, Bradacs v. Haley, No. 13-cv-02351 (D. S.C. Aug. 28, 2013), ECF No. 1; Complaint for Declaratory and Injunctive Relief at 26-27, Tanco v. Haslam, No. 13-cv-01159 (M.D. Tenn. Oct. 21, 2013), ECF No. 1; Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief at 13, De Leon v. Perry, No. 13-cv-00982 (W.D. Tex. Oct. 28, 2013), ECF No. 1; Complaint for Declaratory and Injunctive Relief at 3, 12, Jernigan v. Crane, No. 13-cv-00410 (E.D. Ark. July 15, 2013), ECF No. 1-2; Amended Complaint for Declaratory and Injunctive Relief at 2, 22, Bourke v. Beshear, No. 13-cv-00750 (W.D. Ky. Aug. 16, 2013), ECF No. 5; Complaint for Declaratory and Injunctive Relief at 2, 15-16, Franklin v. Beshear, No. 13-cv-00946 (W.D. Ky. Aug. 16, 2013), ECF No. 1; Amended Complaint for Declaratory and Injunctive Relief at 15-16, Robicheaux v. Caldwell, No. 13-cv-05090 (E.D. La. Aug. 9, 2013), ECF No. 10; Complaint for Declaratory and Injunctive or Other Relief at 4, 8, Geiger v. Kitzhaber, No. 13-cv-01834 (D. Or. Oct. 15, 2013), ECF No. 1; Complaint for Declaratory and Injunctive Relief at 16-17, 22-24, Latta v. Otter, No. 13-cv-00482 (D. Idaho Nov. 8, 2013), ECF No. 1; Complaint for Declaratory and Injunctive Relief at 11-12, Hard v. Bentley, 2:13-cv-922 (M.D. Ala. Dec. 16, 2013), ECF No. 1; Complaint for Declaratory and Injunctive Relief at 38-40, Majors v. Horne, 2:14-cv-00518 (D. Ariz. Mar. 12, 2014), ECF No. 1.

105  U.S. Const. art. IV, § 1 (emphasis added).

106  See, e.g., Lynn D. Wardle, DOMA: Protecting Federalism in Family Law, 45 Fed. Law. 30, 33 (1998) (“Section 2 merely does clarify that the federal full faith and credit rules do not require other states to recognize or enforce same-sex marriages legalized or recognized in one state.”).

107  See, e.g., Letter from Professor Laurence H. Tribe to Senator Edward Kennedy (May 24, 1996), reprinted in 142 Cong. Rec. S5931-33 (daily ed. June 6, 1996) (statement of Sen. Kennedy, “Unconstitutionality of S. 1740, The So-Called Defense of Marriage Act”) (questioning constitutionality of DOMA under full faith and credit).

108  Va. Code Ann. § 18.2-308.01(a).

109  Md. Code Ann., Crim. Law § 4-101(d)(1).

110  See Order Granting Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction, Henry v. Himes, 1:14-cv-00129 (S.D. Ohio Apr. 14, 2014). 

111  See Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 968 (S.D. Ohio 2013).

112  Bourke v. Beshear, 2014 WL 556729, at *3 (W.D. Ky. Feb. 12, 2014).

113  Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1266 (N.D. Okla. 2014).

114  Ala. Packers Ass’n v. Indus. Accident Comm’n of Cal., 294 U.S. 532, 546 (1935).

115  Id. at 547.

116  Pac. Emp’rs. Ins. Co. v. Indus. Accident Comm’n of Cal., 306 U.S. 493, 501 (1939).

117  Myriad cases, decided by the court up to the present day, establish and confirm this proposition.  See, e.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Baker v. General Motors Corp., 522 U.S. 222 (1998); Sun Oil Co. v. Wortman, 486 U.S. 717 (1988).