Love is in the Air (and in the Courts!)

By Arielle P. Schwartz, Holley Law Fellow, National Gay and Lesbian Task Force

scotusSince the Supreme Court of the United States overturned Section 3 of the Defense of Marriage Act in United States v. Windsor, and restored marriage equality in California by invalidating Proposition 8, the judicial system is no stranger to the longstanding debate surrounding marriage equality. New Jersey, Hawaii, Illinois, and New Mexico have subsequently joined the right side of history and we continue to see the Courts interpreting the law in favor of love.

  • In Utah, the United States District Court for the District of Utah held that Amendment 3 of the Constitution of Utah and similar statutes are unconstitutional because they deny same-sex couples their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.
  •  In Nevada, the United States Court of Appeals for the Ninth Circuit ruled that the ban on marriage equality is no longer justifiable—resulting from the recent decision that ruled sexual orientation cannot be a basis for discrimination during jury selection. What does this mean if Nevada still does not perform same-sex marriages? The Ninth Circuit has appellate jurisdiction over Alaska, Montana, Arizona and Oregon—all who have prohibitions limiting marriage to one man and one woman. This may be the push those states need to challenge marriage equality bans and Nevada may have set a precedent for their cases.
  •  On Wednesday, Feb. 12 (also the day that same-sex couples in Louisiana and Missouri filed lawsuits challenging marriage equality bans in their own state), a Kentucky court struck down Kentucky’s law that refused to recognize valid same-sex marriages performed in other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law. Judge Heyburn concluded:

For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society…many states deprived women of their equal rights under the law, believing this to properly preserve our traditions. In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another’s constitutional rights…It is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them. Here as well, sometime in the not too distant future, the same understanding will come to pass.

Yesterday, Federal Judge Arenda L. Wright Allen of the United States District Court for the Eastern District of Virginia held in Bostic v. Rainey that Virginia’s statutory and constitutional prohibitions against same-sex marriage was unconstitutional, confirming that Virginia must recognize same-sex marriages that were carried out legally in other states. She continued by rejecting the defendant’s arguments around the notion of “tradition” as a reason to uphold the same-sex marriage ban, stating, “Tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.” The ruling was accompanied by a stay, meaning that same-sex couples cannot yet begin marrying in Virginia until the case can be heard by the Fourth Circuit Court of Appeals.

While the Supreme Court skirted the issue as to what level of judicial review they used when deciding Windsor, Virginia used strict scrutiny—the most stringent standard of judicial review used by United States courts. For a law banning same-sex marriage to pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. For a court to review the law under strict scrutiny, the legislature must have either notably curtailed a fundamental right with passing the law, or passed a law that involves a suspect classification. Suspect classifications generally include race, national origin, religion, and alienage.

The inconsistencies afforded to cases litigated around sexual orientation discrimination and what basis of review sexual orientation is afforded, may make this issue head to the Supreme Court of the United States in the not too distant future.

Judge Allen included a quote in her Virginia opinion from an address Mildred Loving delivered on June 27, 2007, the 40th anniversary of the landmark case Loving v. Virginia:

I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others…I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Love truly is in the air and we wish you much love this Valentine’s Day.

(In other (breaking) news, the Colorado Senate passed the first bill which would align state tax filing procedures with federal filing procedures, allowing some same-sex couples to file joint state income tax returns).