21 May Marriage Chaos and Judicial Fiat
Last June the Supreme Court made two rulings on same sex marriage : United States v. Windsor (DOMA) , and Hollingsworth v. Perry (Proposition 8). In the case of DOMA, the Supreme Court ruled that the US government could not withhold federal benefits from legally married same sex couples because it interfered in state law. In the proposition 8 case, the Supreme Court refused to make a ruling stating that the lawyers defending the case had no standing before the court and sent the case back to the lower courts. These decision made by the Supreme Court have created legal chaos throughout the nation.
In late 2013 judges in New Jersey and New Mexico legalized gay marriage bringing the total number of states with legal gay marriage to 17. They cited the Supreme Court decisions as reasons to make it legal.
Other courts used the same reasoning. On Dec 20th, a federal judge struck down Utah’s marriage amendment. Gay couples began to marry immediately following the ruling. Two stays on same sex marriages were denied by the federal district court and the federal circuit court. Utah’s Attorney General petitioned the Supreme Court for a stay until its marriage amendment finished the appeals process. On Jan 6th, the Supreme Court granted the stay. Utah’s Governor suspended marriage benefits to gay couples who married between Dec 20th and Jan 6th. On May 19th a federal district judge ruled that Utah must recognize the marriages of the more than 1,000 gay couples who married in that short period of time.
After Utah’s marriage amendment lost in court, Federal district judges struck down marriage amendments in Oklahoma, Virginia, Michigan, Texas, Idaho, Oregon, and Pennsylvania. A state judge struck down the marriage amendment in Arkansas.
Attorney Generals in Virginia, Oregon, Nevada, and Pennsylvania have said that they will not defend the marriage laws in their state.
Nevada’s marriage amendment has been on hold at the 9th Circuit Court since 2012.
On May 20th, Judge Hurwitz from the 9th Circuit court allowed a stay on gay marriages in Idaho stating that the Supreme Court has sent “a clear message” when granting the stay for Utah, that it does not want rulings nullifying state bans on same-sex marriage to go into effect while being appealed. However, the same court did not grant a stay for Oregon. The difference: Idaho is defending its own law, and Oregon has a third party defending its law. Currently, the 9th circuit court is waiting to hear appeals cases from Nevada, Oregon, and Idaho.
The 10th Circuit Court has already heard appeals for Utah and Oklahoma and the people are awaiting a ruling. Whatever the ruling, lawyers will appeal these cases to the Supreme Court.
Federal judges over Kentucky, Ohio, Tennessee, and Indiana have ruled that these states must recognize same-sex marriages from other states. Kentucky’s Attorney General has refused to defend this ruling, but the state of Kentucky has hired outside lawyers to defend the law.
No one is certain about what the Supreme Court will decide since they did not make a ruling for California last June. Some believe that the stay offered to Utah is a sign that the Court will hear the cases and make a ruling about same sex marriage and states’ rights to make their own marriage laws. Others believe that the Supreme Court will wait and see what all of the Circuit Courts rule and leave the issue alone if all the circuit courts agree. Until then, chaos and judicial fiat are defining the marriage laws in many states across the nation.