Following the decisions in Windsor and Perry, there was a veritable explosion of litigation in state and federal courts attacking the validity of bans on marriage equality. There were also many cases filed seeking to enforce provisions of the decisions. In states across the nation, private attorneys, outside of the organizations that had brought most of the litigation before Windsor, brought dozens of cases in opposition to state constitutional and statutory prohibitions of same-sex marriage. Most of these cases were in federal court, but other cases were filed in state courts. These cases produced a wave of victories for the cause of marriage equality across the nation, even in traditionally deeply conservative states.
One of the first big victories for the advocates of marriage equality after their twin victories in the summer of 2013 was in New Jersey. In Garden State Equality v. Dow, six same-sex couples filed a lawsuit against the state of New Jersey averring that the conferral of civil unions (as mentioned above in the discussion of Lewis v. Harris) but not marriage violated their equal protection rights.199 Judge Jacobson of the New Jersey Superior Court for the Mercer
198 U.S. v. Windsor, No. 12-307 (slip op. 20).
199 Garden State Equality v. Dow, 82 A.3d 336, 339 (N.J. Super. 2013).
Vicinage agreed and ordered that the state to provide marriages, not just civil unions, to same-sex couples.200 Crucial to the court’s analysis was the fact that Windsor struck down section 3 of DOMA, extending all the federal benefits conferred by marriage to same-sex married couples.
Since only marriages, and not civil unions, received those federal benefits, there was a different injury than when the New Jersey Supreme Court decided Lewis v. Harris. 201
Although the New Jersey state government at first appealed the decision directly to the state’s supreme court, the government dropped the appeal on October 21, 2013.202 The
government’s sudden reversal may be attributed to strong signs from the New Jersey Supreme Court that such an appeal would not go well for the state. The strongest such signal was a unanimous decision from the court denying the government’s motion to stay the order of Judge Jacobson mandating the state to provide marriage licenses to same-sex couples by October 21.
Speaking with one voice, the New Jersey Supreme Court explained, “We can find no public interest in depriving a group of New Jersey residents of their constitutional right to equal
protection while the appeals process unfolds.”203 Attorneys for the State of New Jersey probably read that language and realized the court would find against the state. In this way, New Jersey achieved marriage equality mere months after Windsor and Perry were decided.
After New Jersey, which many thought would swiftly achieve marriage equality through one means or another, two massive shocks came in the form of victories in federal court in Utah and Oklahoma. On December 20, 2013, Judge Robert J. Shelby of the U.S. District Court for Utah handed down a decision in Kitchen v. Herbert striking down the statutory and constitutional
200 Ibid., 368.
201 Ibid.
202 Kate Zernike & Marc Santora, “As Gays Wed in New Jersey, Christie Ends Court Fight,” The New York Times, October 21, 2013, http://www.nytimes.com/2013/10/22/nyregion/christie-withdraws-appeal-of-same-sex-marriage-ruling-in-new-jersey.html?_r=0 (accessed February 12, 2014).
203 Garden State Equality v. Dow, 79 A.3d 1036, 1044 (N.J. 2013).
prohibitions of same-sex marriage in Utah.204 At least one of the plaintiff couples had applied for a marriage license before Windsor and Perry were decided, but in wake of those cases, Judge Shelby held that Utah’s denial of marriage licenses to same-sex couples violated both equal protection and due process.205 He subsequently ordered the state to issue marriage licenses to any same-sex couples that requested them. Although the Tenth Circuit Court of Appeals stayed Judge Shelby’s order on January 5, 2014, 1,362 same-sex couples were married in Utah in the window of opportunity that order provided.206 The second shock that came in the wake of Windsor and Perry was the resolution of Bishop v. United States in Oklahoma. As mentioned earlier, Bishop was filed in 2004 as an attack on section 3 of DOMA. However, in the decade it took to resolve the case, the Supreme Court struck down section 3 of DOMA in Windsor, making the original claim moot. Thus, on January 14, 2014, the U.S. District Court for the Northern District of Oklahoma handed down a decision on a different issue: the state of Oklahoma’s denial of marriage to same-sex couples. The decision struck down the state’s prohibitions on same-sex marriage, but immediately stayed the order to issue marriage licenses to same-sex couples. This immediate stay was due to the stay imposed on the order in Kitchen by the Tenth Circuit Court of Appeals, which oversees all federal districts in Oklahoma.207 Bishop may be finally resolved when the Tenth Circuit hands down a decision in Kitchen.
To this day marriage equality cases are being filed in states across the nation, both by organizations and by private attorneys with no ties to the major organizations involved in marriage equality litigation. Although the political work associated with marriage equality is
204 Kitchen v. Herbert, 2013 WL 6697874 (D.Utah 2013).
205 Ibid., *18 & *28.
206 Ralph Becker, “Op-ed: This mayor will never forget the day gay marriage arrived,” Salt Lake Tribune, February 12, 2014, http://www.sltrib.com/sltrib/opinion/57535603-82/marriage-couples-utah-gay.html.csp (accessed February 13, 2014).
207 Bishop, 962 F.Supp.2d 1252 (N.D. Okla. 2014).
still mostly done by those major organizations, the marriage equality litigation campaign now involves many attorneys outside those organizations. Cases range from enforcement cases in states wherein marriage equality is already a reality to groundbreaking test cases in states that have not achieved marriage equality. Although this subsection ends the Windsor and Perry Era in December 2013, in reality that era continues. Such an end-date merely serves to provide an end to this short history of marriage equality litigation. This thesis cannot keep pace with the changes coming every day to the legal landscape on this issue, but this bit of historical context should provide background for the discussions of the lawyers presented in the next section.
VI. Results and Analysis