The Texas law that
courts must ignore
is still in force.
a man and a woman. Some same-sex couples brought suit in Federal district court in California to declare
the state constitutional provision unenforceable. The Federal district judge declared that the constitutional
provision violated the Fourteenth Amendment’s Equal Protection and Due Process of Law Clauses. The U.S.
Court of Appeals for the Ninth Circuit certified a question to the California Supreme Court asking whether
the appellants had standing to appeal. The California Supreme Court said “yes.” The Ninth Circuit then
considered the merits, and affirmed the district judge’s ruling, invalidating the provision in the California
constitution. On June 26, 2013, in a 5- to-4 vote, in
Hollingsworth v. Perry
, the U. S. Supreme Court held
that, because the court order did not grant or deny relief to or against the intervenors, as a matter of
Federal law the intervenors had no standing to appeal the case. The U.S. Supreme Court vacated the Ninth
Court of Appeals’ decision and dismissed the appeal, leaving the Federal District Court’s ruling standing
unreviewable and the California constitutional provision unenforceable.
U.S. v. Windsor
On June 26, 2013, in
U.S. v. Windsor
, the U.S. Supreme Court declared Section 3 of the
Defense of Marriage Act of 1996 (“DOMA”) unconstitutional. The Majority Opinion was written by Justice
Kennedy, who sided with the Court’s four “liberal” judges. The Court held that it was unconstitutional for the
Federal government to refuse to recognize a marriage between persons of the same sex when that same-sex
marriage was recognized under the law of the state where the parties reside. The Supreme Court did not
rule that states are required to permit same-sex marriages or that states are required recognize same-sex
marriages originating elsewhere. The Texas law that courts must ignore same-sex marriages is still in force.
Although Justice Kennedy attributed DOMA to an indefensible bias on the part of Congress against gays
and lesbians, the legal basis for the decision was not that such discrimination was unlawful but rather that
principles of federalism protected the States’ right to regulate marriage without interference from Congress.
Justice Kennedy’s Opinion promulgated the rule that the law of the state of residence controlled the validity
of a marriage. This outcome was not very satisfactory to proponents of marriage equality, who would have
preferred that the law of the place of celebration be determinitive.
U.S. Court of Appeals
Herbert v. Kitchen
On June 25, 2014, a panel of the Court of Appeals for the 10th Circuit held
a Utah law banning same-sex marriage to be unconstitutional. On July 18, 2014, in Bishop v. Smith, a panel
of that same Court of Appeals held that Oklahoma’s law banning same-sex marriage was unconstitutional.
The U.S. Supreme Court denied certiorari in both cases on October 6, 2014.
Bostic v. Schaefer (
On July 28, 2014, a panel of the U.S. Court of Appeals for the 4th Circuit
ruled 2-to-1 that a Virginia law banning same-sex marriage was unconstitutional under the Fourteenth
Amendment’s due process and equal protection clauses. The court applied strict scrutiny review. The U.S.
Supreme Court denied certiorari on October 6, 2014.
Baskin v. Bogan
On September 4, 2014, the U.S. Court of Appeals for the 7th Circuit held that
Indiana and Wisconsin laws that banned same-sex marriage were unconstitutional. The U.S. Supreme Court
denied certiorari on October 6, 2014.
OnOctober 7, 2014, theNinthCircuit Court of Appealsappliedheightenedscrutiny