NEW: Pennsylvania's governor says he won't challenge ruling in his state striking down ban
The Supreme Court issued its U.S. v. Windsor ruling last June
Since then, several states have legalized gay marriage on their own
Federal judges have struck several state bans, calling them unconstitutional
The wave started last summer in the Supreme Court.
At 5-4, the high court’s decision on United States v. Windsor wasn’t unanimous. And it wasn’t decisive: The federal government would now have to recognize marriages between gay and lesbian couples, but the ruling did not overturn prohibitions on such legal unions within individual states.
Yet the prevailing opinion has proven to be momentous, especially given what’s happened in its aftermath.
Since Windsor, many states have acted – either via their courts or their legislatures – to legalize same-sex marriage. And, over the past six months, federal judges have moved several other states in the same direction.
These district judges have cited Justice Anthony Kennedy’s ruling on Windsor – even though, in the opinion of University of California at Berkeley law professor Jesse Choper, that decision is “very cautious” and references both individual and states’ rights arguments.
They have repeatedly claimed that having one set of marriage rules for heterosexuals and another for gays and lesbians violates Section 1 of the 14th Amendment, which declares that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
With about 70 cases working their way through the court systems, more district judges could issue their own decisions affecting yet more states. And three-judge appeals court panels will hear more cases, as has already happened in the 10th Circuit out of Denver and the 4th Circuit out of Richmond, Virginia.
Carl Tobias, a constitutional law professor at the University of Richmond, believes it’s likely that the LGBT advocates’ winning streak will end somewhere on the appellate level. While district judges function more independently, appeals court judges “tend to be more ideological,” Tobias notes, and thus it’s more likely they cumulatively will express opinions on both sides of the debate.
That said, whatever these appeals courts decide might be moot. Experts say this fast-moving wave of decisions will ultimately climax where it began, on the nation’s top court – with so-called “swing” justice Kennedy most likely siding with the winner.
As Choper says, “This will only authoritatively be decided by the U.S. Supreme Court.”
Until then, here’s a breakdown of what’s happened in key states on same-sex marriage since the Windsor ruling on June 26, 2013 – based on key developments by state, arranged roughly according to when they happened.
The Golden State has figured prominently in the same-sex marriage fight for years, with both sides winning key victories. It’s perhaps fitting, then, that California’s fate on this matter was effectively decided the same day as the Windsor case.
Four and a half years earlier, voters passed Proposition 8 amending the state’s constitution to ban gay marriage. But several federal courts struck down that prohibition, even if their rulings didn’t take effect immediately.
Meanwhile, California’s leaders decided not to defend Prop 8. This ended up being key when the Supreme Court got the case. It ruled that private parties, rather than government officials, do not have “standing” to defend the voter-approved ballot measure – clearing the way for same-sex marriages in California to resume immediately.
For all the talk about courts, there has also been a lot of movement in state legislatures moving the needle on same-sex marriage over the past 11 months.
Delaware – which previously had civil unions for gay and lesbian couples – adopted full-fledged marriage rights on July 1, just a few days after the Windsor ruling.
Rhode Island similarly opened up to same-sex marriage on August 1, three months after Gov. Lincoln Chafee signed a landmark law in that state.
That same August day, Minnesota joined the same club following the passage of a similar law through its legislature. At that point, 13 states plus the District of Columbia allowed same-sex marriage.
Seven more states allowed civil unions between same-sex couples at that point in time, according to the National Conference of State Legislatures, though six of those also had laws against gay marriage.
In September, Judge Mary Jacobson of New Jersey’s Mercer County Superior Court ruled that same-sex couples must be allowed to marry in her state. The state’s Supreme Court shortly thereafter denied state officials’ attempt to temporarily prevent such marriages.
The biggest surprise may have been when Gov. Chris Christie – a Republican with rumored presidential aspirations who vetoed a same-sex marriage bill in February 2012 – decided to end his legal fight. That set the stage for gay and lesbian couples to wed in the Garden State starting on October 21.
During the 1990s the state Supreme Court found that giving marriage licenses to straight couples but not gay and lesbian ones was unconstitutional. But that decision did not lead to equal rights on marriage; in fact, a same-sex marriage ban made it into the state’s constitution a few years later.
It wasn’t until late last year (and nearly two years after civil unions were allowed) that gay and lesbian couples were given the chance to marry in the Aloha State, after a law moved through the state’s legislature.
Illinois’ state legislature passed a law in November, which Gov. Pat Quinn signed later that month, setting the stage for same-sex marriages there.
They were supposed to start June 1, 2014 – but things didn’t turn out that way.
A few days after Quinn put pen to paper, Patricia Ewert and Verinta Gray – who was then suffering from a terminal cancer – were married. Gray died the following March, according to local media reports.
U.S. District Court Judge Sharon Johnson Coleman ruled in February that same-sex couples in Chicago and surrounding Cook County could marry right away, contending “there is no reason to delay further when no opposition has been presented to this court.”
It was unanimous: Five justices on New Mexico’s Supreme Court all agreed in December that their state’s existing laws prohibiting same-sex marriage violated the state’s constitution. That made New Mexico the 17th state to legalize gay marriage.
In the months before this decision, eight counties had been issuing marriage licenses to same-sex couples – unions that were now affirmed to be valid and ordered be recognized statewide.
Until December 20, 2013, most of the states in which same-sex marriages were overturned had a progressive or at least moderate history. But not so for Utah, where Republicans have won the most votes in the last 12 presidential elections – including Mitt Romney garnering a whopping 73% of the vote in 2012, compared to Barack Obama’s 25%.
That day, a federal judge ruled Utah’s same-sex marriage ban unconstitutional. The 10th Circuit Court of Appeals on Christmas Eve denied state officials bid to temporarily stay that ruling. In fact, it wasn’t until the U.S. Supreme Court stepped in January 6 to temporarily block the decision that the case was sent back to the appeals court.
In April,10th Circuit judges began hearing that appeal. But even as everyone waited for their decision, other courts continued to churn: U.S. District Judge Dale Kimball decided May 19 that the state must recognize the more than 1,000 gay and lesbian couples during that three-week stretch in late December and early January, according to a copy of the ruling posted by SCOTUSblog.
U.S. District Court Judge Terence Kern similarly opined on January 14 that “Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.”
But his ruling didn’t take right away. Kern stayed his own