In the year since Windsor and Perry, 13 federal court decisions have used high court opinions to strike down state marriage bans
WASHINGTON – This Thursday, June 26, marks the one-year anniversary of the U.S. Supreme Court’s landmark rulings in two historic marriage cases – United States v. Windsor and Hollingsworth v. Perry. Since then, not a single state ban on marriage equality has survived a federal court challenge. In fact, since the justices handed down their opinions last year, thirteen out of thirteen federal court rulings striking down state marriage bans have cited the Supreme Court’s Windsor opinion. No social issue in modern history has enjoyed such a dramatic increase in public support as the issue of marriage equality, with strong a majority of Americans now in favor of marriage rights for gay and lesbian couples.
“After decades of work by countless thousands who paved the road to equality we march down today, we are hopeful that this issue will soon be resolved and all Americans will be able to marry the person they love regardless of what state they call home,” said Human Rights Campaign (HRC) president Chad Griffin. “The Supreme Court will soon be asked to decide whether the U.S. Constitution allows for marriage discrimination, and today, hundreds of plaintiffs and attorneys across the country are making an extremely strong case in favor of justice and equality.”
CURRENT MARRIAGE CASES
Over 80 federal and state court cases have been filed in every state with a law or constitutional amendment banning marriage for gay and lesbian couples. Currently eleven cases from ten states are pending before five federal appeals courts, after lower courts issued rulings on the constitutionality of marriage bans. These lower court rulings came from judges who were appointed by both Democrat and Republican presidents. The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction. Three cases out of Utah, Oklahoma and Virginia have already been argued before federal appeals courts. Two states – Oregon and Pennsylvania – declined to appeal federal court rulings that struck down their marriage bans as unconstitutional. In total, 30 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in court.
Cases already heard by federal appeals courts:
- Bostic v. Rainey, Virginia [Argument at the Fourth Circuit was held May 13, 2014]
- Kitchen v. Herbert, Utah [Argument at the Tenth Circuit was held April 10, 2014]
- Bishop v. United States, Oklahoma [Argument at the Tenth Circuit was held April 17, 2014]
Cases pending before federal appeals courts:
- Sevcik v. Sandoval, Nevada [Argument at the Ninth Circuit set for September 2014]
- Latta v. Otter, Idaho [Argument at the Ninth Circuit set for September 8, 2014]
- DeLeon v. Perry, Texas, [Argument date at the Fifth Circuit not set]
- Tanco v. Haslam, Tennessee [Argument at the Sixth Circuit set for August 6]
- Bourke vs. Beshear, Kentucky [Argument at the Sixth Circuit set for August 6]
- Obergefell v. Kasich, Ohio [Argument at the Sixth Circuit set for August 6]
- Henry v. Himes, Ohio [Argument at the Sixth Circuit set for August 6]
- DeBoer v. Snyder, Michigan [Argument at the Sixth Circuit set for August 6]
Each federal court decision striking down a state marriage ban has pointed to the Supreme Court’s equal protection ruling in Windsor, with many judges directly quoting Justice Kennedy’s opinion for the majority. Among the most quoted passages from the Windsor ruling is a line in which Kennedy writes that maintaining separate tiers of relationships “humiliates thousands of children now being raised by same-sex couples.”
Thousands of same-sex couples in Utah, Michigan, Arkansas and Wisconsin have wed after federal and state courts struck down their marriage bans, although an appeals process is underway in each state. HRC has asked Attorney General Eric Holder to ensure the couples that have married in Arkansas and Wisconsin are recognized as married by the federal government, just as he did for couples that wed in Utah and Michigan.
MARRIAGE LANDSCAPE TODAY
Prior to the Windsor and Perry rulings, gay and lesbian couples could legally marry in 10 states and the District of Columbia. Only 16 percent of Americans lived in states with marriage equality. Today, same-sex couples can marry in 19 states and Washington, DC, which constitutes 44 percent of the population. 31 states still prohibit marriage for gay and lesbian couples.
At the time the Perry case was filed in the U.S. District Court for the Northern District of California in the spring of 2009, only 40 percent of Americans supported marriage equality, according to Gallup. A year later in 2010, the year Windsor was filed in the United States District Court for the Southern District of New York, support had risen to 44 percent. Today, Gallup puts support for marriage equality at 55 percent – an astonishing 15 points increase in just 5 years – with other polls showing support at even higher margins.
And support for same-sex marriage rights continues to grow in virtually every demographic group. According to ABC News / Washington Post, 77 percent of adults under age 30 favor marriage equality. 40 percent of Republicans – an all-time high and jump of 16 points in under two years – now support marriage for gay and lesbian couples, while the number of Catholics supporting marriage has grown to 62 percent, according to the New York Times. These numbers continue to grow, with no indication that support will slow down.
In June of 2014 released the results of a survey of 1,200 registered voters conducted by Republican pollster Alex Lundry of TargetPoint Consulting, which found that the number of Americans strongly opposed to national marriage equality has dipped to 28 percent. When asked what they would do if the U.S. Supreme Court struck down discriminatory marriage bans across the country, only 3 percent of marriage equality opponents mentioned that they would protest the decision in any form. The poll results also serve as a crystal ball to peer into the future of the Republican Party. While only 29 percent of Republicans 41 and older support marriage equality, an astonishing 59 percent of those 40 years old and younger are in favor of same-sex marriage.
BACKGROUND ON WINDSOR AND PERRY
Proposition 8 and DOMA were among the most visible symbols of anti-LGBT discrimination around the country and around the world.
In United States v. Windsor, Edie Windsor, represented by the ACLU and Roberta Kaplan of the law firm Paul Weiss, challenged section 3 of DOMA which required her to pay $363,000 in estate taxes after her partner and spouse of more than 40 years passed away. If Edie had been married to a man, instead of a woman, it is undisputed that her estate tax bill would have been zero. Last week the Justice Department released a report detailing the Obama administration’s broad implementation of the Windsor ruling, which allowed the federal government to recognize the legal marriages of same-sex couples for the purposes of crucial federal benefits and programs. Under the leadership of President Obama and Attorney General Eric Holder, the breadth with which this administration has implemented the Windsor decision constitutes the single largest conferral of rights to LGBT people in history.
Hollingsworth v. Perry, previously known as Perry v. Schwarzenegger and Perry v. Brown, was filed on behalf of two same-sex couples in federal district court in California in May 2009. Under the sponsorship of the American Foundation for Equality Rights – co-founded by HRC President Chad Griffin – and represented by conservative attorney Ted Olson and liberal attorney David Boies, the plaintiffs achieved victories in both district court and the U.S. Court of Appeals for the Ninth Circuit, both of which ruled Proposition 8 unconstitutional.
Learn more about the marriage equality landscape at www.americansformarriageequality.org
The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.