Home News Judges Extend High Court Same-Sex Ruling
Judges Extend High Court Same-Sex Ruling PDF Print E-mail
Tuesday, 06 August 2013 10:17


Just weeks after the U.S. Supreme Court struck down part of a federal law that defined marriage as a union between a man and a woman, judges in lower courts are citing and even building on the ruling in battles over state laws concerning same-sex marriage and other issues affecting gays and lesbians.

A federal judge in Cincinnati cited the June ruling in U.S. v. Windsor in finding Ohio's 2004 law banning the recognition of same-sex marriages from other states "likely" to be unconstitutional, at least in regard to the couple that brought the suit.


John Arthur, left, and James Obergefell sued the state of Ohio.

Another federal judge, in Detroit, relied partly on the Windsor case to temporarily strike down a Michigan law denying domestic benefits for gay and other unmarried couples. Days later, a different federal judge in Detroit cited the Windsor case in allowing a lawsuit challenging Michigan's ban on same-sex marriage to move forward, over the state's objections.

So far, all of the rulings have come during preliminary stages of cases, so they might not lead to state laws being upended. But they show how the Supreme Court's decision could quickly reshape state law on marriage even though it only addressed a single part of a federal statute.

"It's a pattern that's emerging—and it's striking," said David Cruz, a law professor at the University of Southern California and an expert on civil-rights law. Rather than finding ways around Windsor, he said, "judges are embracing its principles."

The effect of Windsor could grow significantly in months to come, say legal experts. More than a dozen challenges to same-sex-marriage laws are pending, nine of which were filed post-Windsor, according to Jon Davidson, the legal director at Lambda Legal, which advocates on behalf of same-sex couples seeking the right to marry. Another case garnering close attention, teed up before the Supreme Court of Missouri, deals with whether gays and lesbians should be entitled to survivor's benefits, issues similar to those in Windsor.

The Windsor case concerned two New York residents, Edith Windsor and Thea Spyer, who were married in Canada in 2007. After Ms. Spyer died in 2009, Ms. Windsor tried to claim a federal estate-tax exemption for surviving spouses, but she was barred from doing so by the federal Defense of Marriage Act, a 1996 law that banned the U.S. government from recognizing same-sex marriages. Ms. Windsor sued, and the case wound its way to the U.S. Supreme Court, which struck down a key part of the law.

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Writing for the court's five-justice majority, Justice Anthony Kennedy said Congress had no right to undermine a state's decision to give same-sex couples "the recognition, dignity and protection" of marriage. The opinion said little about state laws banning same-sex marriage. Still, the ruling contained some sweeping language, including that DOMA's "principal purpose is to impose inequality."

In a dissent, Justice Antonin Scalia predicted that such language would soon show up in lawsuits challenging state laws.

Already, that is happening—to the delight of gay-marriage supporters and the chagrin of some conservative groups. Both sides pointed to the ruling in Ohio last month to support their positions. That case involves two Cincinnati men, one of whom, John Arthur, is, according to court papers, dying of amyotrophic lateral sclerosis, known as Lou Gehrig's disease.


In July, the couple got married in Maryland, then returned to Ohio and sued the state, asking that it recognize the marriage so Mr. Arthur would be considered "married" at the time of his death, thus making James Obergefell his surviving spouse.

The judge in the case, Timothy Black, cited Windsor extensively before ruling that Ohio's "scheme has unjustifiably created two tiers of couples," and was likely unconstitutional, at least in regard to the plaintiffs.

Same-sex-marriage supporters lauded the ruling, but some conservative groups said Judge Black, who was appointed by President Barack Obama, effectively fired a cannon to kill a mouse. The court could have made a temporary ruling in regard to the individual plaintiffs; "it didn't have to take on Ohio's marriage laws in their entirety," said John Eastman, the chairman of the National Organization for Marriage.

A ruling in Missouri likely will garner significant attention, say legal experts. Kelly Glossip sued that state in 2010 to recover survivor's benefits after his longtime partner, a state highway patrolman, was killed on duty on Christmas Day in 2009.

Mr. Glossip lost at the trial court, and he appealed to the state Supreme Court, which asked the parties to file briefs addressing the Windsor ruling. "Windsor and its progeny," wrote Mr. Glossip's lawyers in a brief last month, support "the conclusion that the Court should" review the constitutionality of state survivor-benefit laws with heightened skepticism.


In a brief submitted to the court last week, the state argued that Windsor doesn't take away Missouri's right to define marriage as it sees fit. "Rather, the decision affirms the states' 'power in defining the marital relation,' " it said.


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