I’ve been trying to write an update on marriage equality for two weeks now, but each time I start, I’m delayed because another statewide ban on same-sex marriage falls. It’s a good problem to have. Considering the glacial pace at which the law changes, marriage equality is advancing at what feels like breakneck speed.
According to the nonprofit advocacy group Freedom to Marry, there are currently 45 pending marriage equality cases, in 24 of the 33 states that currently do not recognize marriage equality. Right now, same-sex marriage is legal in 17 states and the District of Columbia, while Colorado, Nevada, and Oregon grant marriage rights through civil unions or by recognizing domestic partnerships. And, as Ian Millhiser at ThinkProgress notes, of the cases that have been decided since last summer’s Supreme Court decision in U.S. v. Windsor, five federal courts (in Virginia, Utah, Oklahoma, Ohio, and Kentucky) have ruled in favor of marriage equality. Not a single one has ruled against it. And state courts in New Jersey and New Mexico have ruled the same.
But it’s not just the speed at which marriage equality has been embraced by the federal courts—it’s the veracity. Take the federal court decision striking down Virginia’s ban on same-sex marriage. The opinion, issued just a few days after oral arguments, opens with a quote from Mildred Loving, plaintiff in the historic Loving v. Virginia case that struck down interracial marriage bans, where she joins her cause with the cause of marriage equality for all. From there, the court beautifully and forcefully grounds its decision to strike Virginia’s ban into the most fundamental constitutional principles of this country: fairness and equality. “Justice has often been forged from fires of indignation and prejudices suffered,” the court wrote. “Our triumphs that celebrate the freedom of choice are hallowed. We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.”
The court continued:
Appreciate our work?
Almost one hundred and fifty four years ago, as Abraham Lincoln approached the cataclysms rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: “It can not have failed to strike you that these men ask for just…the same thing—fairness, and fairness only. This, so far as in my power, they, and all others, shall have.”
The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have.
If marriage equality was not something states were ready for—if it was a cause that should be advanced and handled by the federal courts, incrementally, as a majority of Supreme Court justices seemed to suggest in Windsor—that’s a message that has been largely lost on the lower courts. Days before Virginia’s unwavering embrace of marriage equality in the name of fairness, a federal court in Kentucky advanced the marriage equality cause in the name of federalism. U.S. District Judge John G. Heyburn II, an appointee of President George H.W. Bush, ruled that the state must recognize same-sex marriages performed in other states because failing to do so “places same-sex couples [married out of state] in an unstable position of being in a second-tier marriage [in Kentucky]. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.”
If our Constitution protects anything, the court concludes, it protects the rights of individuals to have their fundamental civil rights recognized from state to state. And while the case before Heyburn didn’t require him to decide whether Kentucky must affirmatively grant marriage licenses to same-sex couples, the answer to that question, Hyburn wrote, is “virtually compelled” by both Windsor specifically and the Constitution generally.
As David S. Cohen and Dahlia Lithwick argue at Slate, the legal case against marriage equality is over. No federal courts have yet ruled against it, and the decisions embrace both equal protection in terms of equality and federalism. I think they’re right. We may see a stray district court opinion that rules otherwise, and the Supreme Court will likely have the final say on the issue of marriage equality as a fundamental right. But by and large, the legal case against marriage equality is finished.
However, while so much of the legal analysis and court opinions have focused on the legacy of Windsor, it’s the companion case, Hollingsworth v. Perry, that I think deserves a lot more credit here. It was that trial on the merits that forced opponents of same-sex marriage to present evidence of harm, to construct legal theories based on that evidence, and to withstand the scrutiny of both a trial and public opinion. And that, the Virginia court recognized, is when the federal judiciary is at its best: when it serves as the venue for careful, detailed scrutiny of state claims that discrimination is necessary, and even justified—and most importantly, as the federal courts in red states are showing, when it rejects those claims.