Same-sex marriage +1: Judges take cue from justices

Willie Grace | 6/30/2014, 11:50 a.m. | Updated on 6/30/2014, 11:50 a.m.
One voice, one message. From state and federal courts nationwide over the past year has come an astounding, near-unanimous conclusion: ...

One voice, one message. From state and federal courts nationwide over the past year has come an astounding, near-unanimous conclusion: bans on same-sex marriage are unconstitutional.

Spurred by what the Supreme Court said peripherally one year ago on the issue, there has been rapidly evolving momentum toward a goal that seemed unimaginable barely a decade ago: a right for gays and lesbians to wed.

And it could soon be a nationwide mandate, if the justices, as expected, are asked by year's end to re-enter the political, social, and legal debate over what has been called by some the civil rights issue of the new millennium.

It is already a reality in 19 states, with Pennsylvania and Oregon in recent weeks becoming the latest to join an expanding bloc legalizing the practice. Just a decade ago, there were none.

"In theory, the justices can avoid deciding any question, particularly when there is no division, and there isn't about same-sex marriage in the lower courts -- yet," said Thomas Goldstein, an appellate attorney and publisher of "But this is just too important. They can't stay out, it would be ridiculous for the nation's highest court not to decide this issue."

Can same-sex bans stand up to the Constitution?

Status in the states

Judges in more than a dozen states in the past eight months have struck down same-sex marriage bans in Utah, Idaho, Texas, Oklahoma, Arkansas, Michigan, Kentucky, Tennessee, Virginia, Oregon, Pennsylvania, Wisconsin, and New Jersey.

All cited the high court's separate ruling in the so-called "Windsor" case, which invalidated a key part of the federal Defense of Marriage Act.

Legal recognition of wedlock has long been under the discretion of individual states, but a 1996 law had defined it for federal purposes as only between one man and one woman.

That meant even legally married same-sex couples could not claim tax breaks; Social Security, pension and bankruptcy benefits; along with family medical leave protections and other provisions enjoyed by opposite-sex couples.

On constitutional due process and equal protection grounds, the divided high court on June 26, 2013, said DOMA "seeks to injure" those gay and lesbian couples afforded a marriage right in their state, since it "writes inequality into" the law.

State and federal judges have now grabbed onto the "Windsor" decision, taking the issue to its next step -- whether current same-sex marriage bans -- still in place in 31 other states -- can stand up to the Constitution.

In sweeping, often poetic language, those judges have emphatically said no.

"It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it," Arkansas and Pulaski County Circuit Judge Chris Piazza said in one case in May.

Appeals courts next

The next rungs on the judicial ladder are the the appeals courts, the stage of review just below the Supreme Court.

On Wednesday, a federal appeals court in Utah overturned that state's ban. Utah officials said their next stop would be Washington, although, it's unclear if the Supreme Court would take the case.