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One Year After Windsor: The State of Same-Sex Marriage

By William Peacock, Esq. on June 26, 2014 | Last updated on March 21, 2019

It's been one year since the Supreme Court handed down its decision in Windsor, striking down part of the Defense of Marriage Act as an unconstitutional "deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

Justice Anthony Kennedy's legally vague, but passionately worded opinion was expected by many, including the dissenting Justice Antonin Scalia, to have an impact on the ongoing debate over same sex marriage bans. But did anyone expect it to happen this quickly? One year after Windsor, the scorecard is clear: same-sex marriage is winning in a blowout and will, in all likelihood, be knocking on the Supreme Court's door in a matter of months.

District Courts: We Lost Count, But SSM is Undefeated

Seizing upon Justice Kennedy's language, including the holding that DOMA's "principal effect is to identify a subset of state-sanctioned marriages and make them unequal," and that "the necessary effect of this law [is] to demean those persons who are in a lawful same-sex marriage," federal district courts across the country have unanimously came to the same conclusion: same-sex marriage bans violate Equal Protection principles.

The latest court to do so was a district court in Indiana, which struck down that state's ban earlier this week without staying the decision pending appeal. (An application for a stay is now pending, reports the Indy Star.)

According to USA Today, the Windsor case has been cited over 400 times in the 20 court opinions, all in favor of same-sex marriage.

The State of Same-Sex Marriage in America (map) - FindLaw

Appeals Courts: Two Favorable Rulings

Two appeals courts released opinions this week that are sure to bolster the same-sex marriage cause.

In the Ninth Circuit, the court denied en banc review of a Batson challenge case that included a very important holding: heightened scrutiny applies to sexual preference-based discriminations. For that case, it meant that a lawyer couldn't use a peremptory challenge to strike a gay juror from a panel.

But, as the dissenting Judge Diarmuid O'Scannlain lamented, for the same-sex marriage cases pending in the circuit, it meant more: heightened scrutiny means there is almost no conceivable way that same-sex marriage bans will stand once the court decides appeals out of Nevada, Idaho, or Oregon.

Elsewhere, in the Tenth Circuit, a panel affirmed a district court ruling striking down Utah's same-sex marriage ban on Tuesday. Windsor, by the way, was mentioned 58 times in the opinion.

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Unsettled Question: Level of Scrutiny

At this point, with twenty victories and counting, and two circuits issuing favorable rulings, same-sex marriage seems like a foregone conclusion. But the big, unanswered question, which still divides the courts and may be the ticket to the Supreme Court, is this: what level of scrutiny applies to these types of discriminatory laws?

The Court itself declined to set a standard in Windsor. The Ninth Circuit reasoned that the language used and the precedent cited in that case indicated that some form of heightened scrutiny applied -- though it didn't decide whether that was intermediate or strict. The Tenth Circuit's majority applied strict scrutiny, while the dissent would've applied rational basis.

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