Utah’s bid last month to overturn a federal judge’s historic same-sex marriage ruling came on like a storm.
There were weeks of buildup and countless hours of preparation. When it finally hit — in a Denver courtroom at the 10th Circuit Court of Appeals — it was quick but impactful, with both sides given half an hour to make their case. In its wake, days of rabid speculation took hold.
But there is little calm in this quiet as both sides of Utah’s same-sex marriage debate eagerly await a ruling that could come any day now.
Meanwhile, challenges to gay-marriage bans across the nation continue to be filed, fought and won.
On Friday, a state judge in Arkansas ruled that the state’s voter-approved ban on same-sex marriage violated the federal Constitution’s promise of equal protection. It became the latest in a battery of state and federal cases that have declared such laws unconstitutional.
Although it’s unclear how these rulings may affect the decision of appellate judges — or, eventually, the U.S. Supreme Court — it’s a trend experts say shouldn’t be ignored.
“It’s hard to imagine that all those judges are wrong, but we’ll see,” said Carl Tobias, a professor at the University of Richmond School of Law. “At some point if you have so many rulings pointing one direction, it becomes that much more difficult to rule the other way. It’s almost like a tidal wave of support for the plaintiffs in these cases.”
State by state • As of late last week, there were 72 lawsuits pending in state and federal courts of 32 states and territories that challenge state laws banning or limiting same-sex marriage.
Gay and lesbian marriages are legal and recognized in 17 states.
Alaska — which approved a constitutional amendment banning same-sex weddings in a 1998 referendum and then made it illegal for gay and lesbian couples to achieve any form of civil union or domestic partnership in 2007 — is the only state in the country whose law is not being challenged in court.
But the landscape is constantly changing.
Marc Solomon, the national campaign director of gay-rights organization Freedom To Marry, said it’s an exciting, albeit hectic, time to be on the forefront of the same-sex marriage fight.
“The public support continues to grow and expand in our direction. Every day there are more cases being filed and decided, and since last year’s ruling on [the Defense of Marriage Act], we’re 11 for 11 in federal court,” Solomon said. “All that together makes me quite confident that marriage equality will ultimately prevail.”
Most challenges to local same-sex marriage laws point to the U.S. Supreme Court’s ruling last year that struck down the crux of the Defense of Marriage Act and declared that the federal government could not define marriage as a strictly heterosexual union.
Many also cite Robert J. Shelby, the federal judge who toppled Utah’s ban on gay marriages.
Shelby — who was nominated to the federal bench by President Barack Obama and publicly endorsed by Utah’s Republican senators, Mike Lee and Orrin Hatch, — became the first federal judge to rule on such a case in the aftermath of the DOMA decision. In his ruling, he declared that marriage is a “fundamental right” and cannot be denied to U.S. citizens regardless of their sexual orientation or the gender of their would-be spouses.
“The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,” he ruled.
In the last two months alone, the United States has seen five new challenges to local same-sex marriage bans, with lawsuits in Arizona, Georgia, Florida, Puerto Rico and Wyoming.
Wyoming became the last of the 10th Circuit states to challenge a state ban on same-sex unions. The case, Courage v. Wyoming, was filed in state court on March 5 by the National Center for Lesbian Rights on behalf of four plaintiff couples in the state.
The other four were filed in federal court.
“It’s very checkered,” Tobias said.
So what’s the advantage to fighting a case like these before a federal judge rather than a state one?
The answers can vary state-by-state, but generally, Tobais said, the consensus is federal judges are better equipped to rule on these questions of federal constitutionality.
Changing landscape • On Friday, Arkansas became the most recent state to see its ban on such unions overturned by a judge — state Circuit Court Judge Christopher Piazza declared that a state law and constitutional amendment that defined marriage as a legal union between a man and a woman are unconstitutional. At least one Arkansas county began issuing marriage licenses to same-sex couples on Saturday as Attorney General Dustin McDaniel said he would appeal the ruling and ask that it be suspended during that process.
“The issue at hand is the fundamental right to marry being denied to an unpopular minority,” Piazza wrote in his decision. “Arkansas’s marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest.”
The judge took a different approach than many federal judges have, and found that the state’s law was predicated on animus, or malevolent prejudice, against a particular group.
Piazza also liberally compared same-sex marriage bans to 20th-century laws that outlawed interracial marriages, which were ultimately struck down in the landmark 1967 case Loving v. Virginia.
It’s a comparison experts believe will be brought to the forefront on Tuesday, when Virginia appeals a lower court’s decision to topple their ban on same-sex marriages to the 4th Circuit Court of Appeals.
Virginia’s appeal, which trails Utah’s and Oklahoma’s by barely a month, is also likely to be appealed to the U.S. Supreme Court — regardless of the outcome.
What’s next • Although Utah, Virginia and Oklahoma are just a few of the several same-sex marriage cases likely headed to the U.S. Supreme Court, the nation’s high court does not have to hear any of them.
Justices can decide which case — if any — they want to hear.
This has led to widespread speculation over which circuit may be selected.
Some experts argue the court may want to hear a case out of the 6th Circuit because it would be representative — each of its states has a same-sex marriage lawsuit pending.
Others argue it may select Utah’s case out of the 10th Circuit, given that Shelby’s ruling was the first and, arguably, most influential of the district-level decisions.
The court may also choose to lump all the cases together and issue a broad ruling.
No matter what they do, Tobias said, it’s unlikely the court will choose not to rule on the question given the amount of momentum such cases have gained and how widely they’ve spread.
“Judges read the newspaper and live in society and interact with other citizens,” he said. “They have a sense of what’s going on and how much this matters to people. They have to.”
The Associated Press contributed to this story.
Where is same-sex marriage legal?
States with cases pending in U.S. appeals courts
4th Circuit • Virginia
5th Circuit • Texas
6th Circuit • Kentucky, Michigan, Ohio, Tennessee
9th Circuit • Nevada
10th Circuit • Oklahoma, Utah