Federal Judges Continue to Strike Gay Marriage Bans

Gay marriage bans continue to fall like dominoes in Federal Courts as three more states saw laws prohibiting same-sex unions fail constitutional challenges over the past week.  Bans on same-sex marriage were overturned in Idaho, Oregon, and Pennsylvania in rapid succession, leaving plaintiffs challenging the constitutionality of anti-gay marriage laws undefeated since the Supreme Court’s United States v Windsor decision last summer.

What continues to be news, and what the Supreme Court will need to settle, are the varying legal doctrines the lower Federal Courts employ to strike down same-sex marriage bans – the difference being key to the constitutional protection afforded members of the gay community.

Pennsylvania and Idaho Follow Same Path to Strike down Gay Marriage Ban

In two recent same-sex marriage lawsuits, Idaho District Judge Candy Dale and Pennsylvania District Court Judge John E. Jones determined that both states passed gay marriage ban that are unconstitutional in violation of the Due Process and Equal Protection Clause.  The Due Process argument is somewhat unique in that it conveys upon gay marriage the protection afforded a fundamental right.  As discussed here after a Virginia Judge used the same logic earlier this year, protecting gay marriage as a fundamental right appears to be a legal reach because same-sex couples have historically been unable to marry – meaning that at no point in American history has the right of gay marriage been recognized as fundamental.

Both judges also cited the much more common Equal Protection Clause argument in their defense of gay marriage, both claiming that sexual-orientation discrimination triggered intermediate scrutiny – meaning that a law must advance an important government interest in order to pass constitutional review.  In these cases, both Idaho and Pennsylvania failed to prove their laws furthered an important government interest, and therefor both bans were unconstitutional.  This approach is also somewhat novel in that not many district courts have conferred sexual-orientation intermediate scrutiny protection, choosing instead to classify gay marriage laws as gender discrimination – a path that also applies intermediate scrutiny, but does so with stronger legal precedent.

Oregon Follows Equal Protection Path to Strike down Same-Sex Marriage Ban

Oregon district judge Michael McShane dismissed Oregon’s ban on same-sex marriage citing the Equal Protection Clause, but took a different approach than either Idaho or Pennsylvania.  Judge McShane's opinion did not convey any unique protection to sexual-orientation, but instead determined that the state’s gay marriage ban failed to pass the even the minimal rational basis scrutiny – an evaluation that applies to all laws and can be withstood if a state proves the legislation serves a legitimate government interest

Judge McShane, whose position in the case raised controversy because he is a gay man, did not find the need to offer any unique protections to sexual-orientation because he felt that laws which ban same-sex marriage cannot pass even a basic constitutional review.  This approach is not unique – other courts have similarly determined that a law banning same-sex marriage cannot survive a rational judicial review because there is no legitimate state interest advanced by prohibiting gay marriage. 

Supreme Court Likely to Have Final Say on Gay Marriage

The varying approaches to dismissing gay marriage bans are important to understand because the issue is likely headed back to the Supreme Court to settle once and for all, and the final outcome will influence not only gay marriage, but sexual-orientation discrimination in general. Although the federal judges have ultimately reached the same destination, SCOTUS will need to have the final say in order to solidify the legal position.  Given its rapid ascenion through the American legal system, the gay marriage decision is likely to force its way back to Washington sooner than the Court expected when it declined to take the opportunity to provide a definitive solution to same-sex marriage bans in last year’s Windsor decision.

After the Idaho, Oregon, and Pennsylvania decisions this past week, 18 states have had gay marriage bans overturned – several in front of conservative judges who have joined their liberal brethren in finding no legal basis to support bans on gay marriage.  The variety of reasons that judges have employed to strike down gay marriage bans bodes well for same-sex advocates, however, the longer the Supreme Court stays silent on the issue, the more varied the lower court rulings will be – leaving the status of gay marriage an unsettled legal question.  Although gay marriage litigants currently have tremendous momentum, a silent Supreme Court can easily open the door for one of the many challenges to same-sex marriage bans to fail, throwing a complication in what so far seems to be one of the most cut-and-dry legal trends in recent history.


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