It’s Over: Gay Marriage Can’t Lose in the Courts

The law, lawyers, and the court.
Feb. 14 2014 10:43 AM

It’s Over: Gay Marriage Can’t Lose in the Courts

A perfect record for equality post-Windsor.

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Insofar as there was confusion about what Windsor meant at the time it was decided, the lower courts across the country have now effectively settled it. A survey of publicly available opinions shows that in the eight months since Windsor, 18 court decisions have addressed an issue of equality based on sexual orientation. And in those 18 cases, equality has won every single time. In other words, not a single court has agreed with Chief Justice Roberts that Windsor is merely about state versus federal power. Instead, each has used Windsor exactly as Justice Scalia “warned”—as a powerful precedent for equality.

This hasn’t all been about marriage. Twelve decisions have addressed a substantive aspect of marriage equality since Windsor, and equality has won in all 12—with the Virginia decision now joining decisions from Kentucky, New Mexico, Oklahoma, Utah, and West Virginia, and two decisions each in Illinois, New Jersey, and Ohio. But six other cases since Windsor have addressed different aspects of discrimination based on sexual orientation, such as discrimination on juries and employment benefits, and the side of equality has won in all six of those cases as well.

The tally is even starker when you look at the number of judges who have considered the issue.  Since Windsor, in these 18 decisions, 32 different judges have considered whether Windsor is merely about the relationship between the state and federal governments or whether it is about equality. And all 32 of them have found for equality. In other words, 32 accomplished, intelligent lawyers, appointed by Democrats and Republicans, whose job it is to read precedent, have ruled for equality. Not a single one has disagreed.

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One other phenomenon has occurred post Windsor that bears mentioning here. In Virginia and Pennsylvania, state attorneys general tasked with defending their state’s same-sex marriage bans have also read Windsor to mean that the ban is unconstitutional. In New Jersey, Gov. Chris Christie abandoned the state’s appeal of a decision striking down the New Jersey marriage ban.  And now this week, Nevada’s attorney general, a Democrat, and its Republican governor, announced that they too, could not defend the state’s gay-marriage ban anymore. Why? Windsor. As the Nevada officials explained to the 9th Circuit, the Windsor decision “signifies that discrimination against same-sex couples is unconstitutional,” and thus the arguments that the state had made previously in support of its ban “cannot withstand legal scrutiny.” That means that not just courts, but also, increasingly, high state officials read the Windsor decision just the way Justice Scalia does: to prohibit inequality in marriage. As we witnessed this month in Virginia, the historic refusal to defend a same-sex marriage ban, followed by the judicial recognition that such a ban is unconstitutional, can unfold over a matter of mere weeks.

Whatever doubt there may have been about the legal predicate of the case following Windsor is now gone. The questions left in the wake of the decision don’t matter anymore. Thirty-two judges over 18 decisions make it crystal clear: Windsor, whether it intended to or not, is a powerful decision against discrimination, and for equality.

David S. Cohen, associate professor at the Drexel University Thomas R. Kline School of Law, is co-author of a forthcoming book about anti-abortion terrorism and was co-counsel for plaintiffs in Ballen v. Corbett. Follow him on Twitter.

Dahlia Lithwick writes about the courts and the law for Slate

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