It seems as if every day we read another story about marriage equality. In November 2012, marriage equality was passing on the ballots, in June 2013, the federal Defense of Marriage Act (DOMA) was ruled unconstitutional. Almost immediately, there was a case in Ohio where a court ruled a dying man could put his husband’s name on his death certificate, but the question of marriage recognition within the state was not dealt with.
Since the Windsor case, the June 2013 decision which held that the federal government could not discriminate against couples whom a state had allowed to legally marry, more and more court cases have held that couples can legally marry within their own state. As an attorney who has been following these issues and presenting on the issues of same-sex marriage for years, sometimes I get confused. When I talk to friends without law degrees, they are even more confused. It is hard to understand what this all means: Why, if a court in Idaho has declared that the ban on marriage equality is unconstitutional? Why can’t same-sex couples get married in Idaho?
Mini Civics Lesson
Our government is set up so that there are layers of government: city, county, state and the federal government. Some functions are distinct to that layer of government and many functions overlap.
States can pass laws that affect all of its citizens. Marriage is a good example. Each state defines rules around marriage, i.e., how old you have to be to get married, which cousins you can marry, and how long you have to wait to get married after you get a license. Most states recognize a marriage performed in another state, so long as it was legal in Washington. For instance, some states allow you to marry your first cousin, even though Washington does not allow you to marry your first cousin, if you married your first cousin in a state that allows it, Washington will recognize your marriage.
Historically, the federal government has left the defining of marriage up to the states. That changed in 1996, after Hawaii almost allowed same-sex marriage. In response the federal government passed DOMA, which allowed the federal government to not recognize marriages that were valid in the state they were performed if the marriages were between same-sex couples.
Most states followed the federal government’s lead and passed “mini-DOMAs” either as state laws or amendments to their state constitution. These mini-DOMAs said theses states would not recognize marriages performed by other states if the marriage was between same-sex couples.
Our courts system is layered in a similar manner, but with even greater complexity. Courts exist on the city (municipal), county (superior and district courts, state appeals courts, state Supreme Courts), and federal (district courts, bankruptcy, and federal appeals court, including the U.S. Supreme Court) levels. Federal court typically hear issues that deal with federal law or significant amounts of money. State courts typically deal with state laws, state constitutions, etc. An issues that is completely based on state law and includes no federal constitutional challenge cannot get to the U.S. Supreme Court.
Washington Marriage Equality History
In Washington, we first sought marriage equality through the courts in 1974. Singer v. Hara, was the first case that went to our state Supreme Court unsuccessfully seeking to end the prohibition on same-sex couples being allowed to marry.
In 2006 the court rejected another case attempting to challenge the constitutionality of prohibiting same-sex couples from marrying. Justice Madsen wrote the decision that put Washington State Supreme Court on the wrong side of history.
In Anderson v. King County, the court held that the Washington State DOMA was constitutional because “limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes.”
Chief Justice Madsen found that there was no proof that homosexuality was immutable, i.e., no showing that homosexuality is something that cannot be changed. Since all men and women are equally prohibited from marrying someone of the same-sex it cannot be sex-based discrimination.
This meant for same-sex couples to get married in Washington, they were going to have to rely solely on the legislature. In 2006, this did not seem like change would happen that quickly 2006 also marks the time in history, where our state finally passed a non-discrimination bill that included a prohibition on discriminating based on sexual orientation and gender identity. It took 30 years for this bill to get passed, and the efforts of Cal Anderson, who did not live long enough to see his efforts become the law. Representative, and then later Senator Ed Murray (now Seattle’s mayor) worked with Representative, now Senator Jamie Petersen, among many others to pass marriage equality. Republican Maureen Walsh from Walla Walla county’s speech in support of marriage went viral. Governor Christine Gregoire signed the bill into law on February 13, 2012.
Then, a referendum fight began. In Washington, citizens have two avenues to essentially legislate. We can put an imitative on the ballot, which is when we draft or our law and then put it to a vote of the entire citizenship. We can also seek to have a veto power through a referendum. A referendum is a process where after the legislature passes a law, individuals who gather enough signatures can ask citizens to declare whether they approve or reject the law the legislature passed. A vote to reject, essentially services as a citizen veto. Opponents to the recognition of same-sex relationships attempted this first in 2009, when they “Everything But Marriage” law passed. They failed. They failed again in 2012, when they attempted to get the citizenry to veto marriage equality.
Despite having marriage equality in the state of Washington as of December 6, 2012, we did not have federal marriage equality. This meant while you could get married and have all the state rights connected to marriage (which we had since 2009, but now we got the word that everyone understands and the meaning that is embodied in a word). But the Federal Government was insisting that people in community property states do things like income splitting (this is a complicated tax issue related to community property and Lambda Legal explained it here.). It also meant you would be taxed by the Federal Government on property you left for your spouse at death (something that didn’t happen to different-sex couples). You couldn’t sponsor your fiancé or spouse for immigration purposes. People in the military or the Federal Government did not have access to benefits for their spouses that were available to opposite-sex couples and much more.
U.S. Supreme Court Decisions
In June 2013, the Supreme Court came down with two cases impacting the marriage struggle. The first has had the most immediate impact. In Windsor, the Supreme Court held it was a violation of the Equal Protection Clause for the Federal Government to refuse to recognize legal marriages based on sexual orientation. This decision did not require all states to allow marriage, simply that if a state did allow marriage, the federal government had to recognize their marriage.
The other case the Supreme Court decided was the California Proposition 8 case. Hollingsworth v. Perry. In this case, the State of California had passed a state constitutional amendment that denied marriage to same-sex couples. It went to the Ninth Circuit trial court and the court held that the amendment violated the Equal Protection and Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. California officials decided not to appeals this decision. The proponents of Proposition 8 intervened and appealed all the way to the U.S. Supreme Court. When it got to the U.S. Supreme Court, the court held that the Proposition 8 proponents did not have standing to intervene. Meaning that the proponents could not show that they were actually harmed in anyway and so they did not have any right to appeal the decision. This mean the trial court opinion is the official decision.
The Post-DOMA and Prop 8 World
At the time that Windsor case and the Prop 8 case were before the Supreme Court, there were several challenges to the ban on same-sex marriages already pending in courts. Since then there have been several more challenges. Lambda Legal has done an excellent summary, although things are rapidly changing and it is immediately out of date, but it is still a useful tool. Freedom to Marry also has also been tracking the wide array of cases.
Many states have had decision that have said that it violates the Fourteenth Amendment’s Equal Protection and/or Due Process Clauses of the U.S. Constitution to deny same-sex couples the right to marry. Typically right after a decision comes done a stay is issued. A stay is essentially a pause button. It says that until a higher court rules on the decision, no one can get married. Sometimes couples are able to get married in their home state before the stay is in effect. In Michigan, the state has said that these couples will not be recognized as married, but the Federal Government has said that they will recognize these couples as married.
I visualize the issue by U.S. Circuits. We have eleven circuit courts and the District of Columbia Court. Generally, when a federal court of appeals makes a ruling, it applies to every state within that district.
Typically before a case can go to the Supreme Court it must first go through the appellate process. This means a decision at the trial level is appealed. Then the court of appeals must decide. Then this decision can be appealed to the U.S. Supreme Court, although review is not required.
When we break down the numbers, we can see that 19 states and the District of Columbia recognize marriage and another three states have comprehensive domestic partnership or civil unions.
In all 31 states without the freedom to marry and Puerto Rico, there’s pending marriage litigation.
Of the filed cases, 11 have already had decisions at the trial court level and are pending in a Federal Courts of Appeals. These pending cases are in the Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth circuits. As an aside, there shouldn’t be any cases in the First or Second circuits as all of the states in those circuits have marriage equality.
Once an appeals court rules, the matter will likely be appealed to the U.S. Supreme Court. If several cases have decisions before the Court begins deciding what appeals cases to hear, they will like consolidate the cases, meaning that they will hear all the cases together. When this happens, if the Supreme Court holds it is a violation of the U.S. Constitution to prohibit same-sex couples from marrying, the decision should apply to every state in the U.S.