The March Toward Marriage Equality in a Post-<i>Windsor</i> Nation

In addition, the Windsor decision has spurred or advanced court challenges to state bans on same-sex marriage: Within two months of the Supreme Court's ruling, same-sex couples commenced lawsuits aimed at gaining marriage equality in at least 15 states. Legal same-sex marriages also resumed in California after the Supreme Court ' on the same day it decided Windsor ' let stand a lower court decision invalidating Proposition 8, the ballot initiative which, like DOMA, had limited the definition of marriage to heterosexual unions in the nation's most populous state. See Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). But perhaps the most dramatic effect of the Windsor decision to date was seen in New Jersey, which became the 14th state in the nation to legalize same-sex marriage as a direct result of the Supreme Court's invalidation of DOMA.'

Changes in Federal Regulations After Windsor

On the day that Windsor was decided, President Barack Obama issued a press release applauding the ruling as “a victory for [same-sex] couples who have long fought for equal treatment under the law” and for their children. Statement by the President on the Supreme Court Ruling on the Defense of Marriage Act, June 26, 2013, 1.usa.gov/1bgDMOn. In the same release, the President announced that he had directed the Attorney General to “work with other members of [the] Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

In the months following the President's directive, Government agencies announced numerous changes in the administration and enforcement of federal regulations. By the middle of September, one U.S. Government publication noted the following changes made in the wake of Windsor:'

The Department of Justice and Internal Revenue Service (IRS) ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. (It was noted that the IRS ruling applies irrespective of whether the couple currently lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.) The Social Security Administration now recognizes same-sex marriages for purposes of determining benefits. All beneficiaries in private Medicare plans now have access to equal coverage when it comes to care in a nursing home where their spouse lives. U.S. embassies and consulates will process visa applications for same-sex marriages just as they do for opposite gender spouses. The Department of Defense will extend benefits to same-sex spouses of uniformed service members and civilian employees. The Office of Personnel Management now provides benefits to legally married same-sex spouses of federal employees and annuitants.

USA.gov, Changes to Federal Benefits After the Supreme Court's Ruling on the Defense of Marriage Act (DOMA), Sept. 18, 2013, 1.usa.gov/186khFC.

Marriage Equality Comes to New Jersey

As a result of the Supreme Court's Windsor ruling, same-sex marriage became legal in the State of New Jersey, despite the opposition of a popular governor who had vetoed same-sex marriage legislation in 2012. The first legal same-sex marriage ceremonies were performed in the state on Oct. 21, 2013, following a dramatic ruling by the state's Supreme Court based on Windsor. See Garden State Equality v. Dow, __ N.J. __ (Oct. 18, 2013) (073328), available at http://bit.ly/1apOHm6 (N.J. Supreme Court order).

Several years earlier, the same court had held that same-sex couples in committed relationships are entitled to the same rights and benefits as married couples of the opposite sex. Lewis v. Harris, 188 N.J. 415, 423 (2006). The New Jersey Legislature responded to Lewis by enacting a law that created civil unions meant to guarantee same-sex partners the rights and benefits of marriage. See Civil Union Act, N.J.S.A. ” 37:1-28 to -36. But the legislation did not permit same-sex couples to marry.'

Following the legalization of same-sex marriage in neighboring New York in 2011, the New Jersey Legislature passed a bill in February 2012 that would have allowed same-sex marriage in the Garden State. But Governor Chris Christie quickly vetoed the bill, reaffirming his belief that voters should decide the issue of whether to legalize same-sex marriage in the state. See Kate Zernike, Christie Keeps Promise to Veto Gay Marriage Bill,
http://nyti.ms/1b2UVg4.

Meanwhile, plaintiffs in Garden State Equality v. Dow ' an advocacy group and six same-sex couples and their children ' had filed suit against New Jersey state officials in 2011, challenging the Civil Union Act. The suit alleged that the civil union status created by the State did not confer equal rights on same-sex partners. Then, following the Windsor decision striking down DOMA, the plaintiffs moved for summary judgment. And on Sept. 27, 2013, the trial judge in the New Jersey case issued a decision holding that
“[s]ame-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.” Garden State Equality, Docket No. L-1729-11, slip op. at 53 (N.J. Super. Ct. Sept. 27, 2013), available at http://bit.ly/15zBW7G (N.J. Trial Court order). In an accompanying order, the court also directed state officials to allow same-sex couples to marry beginning on Oct. 21, 2013.'

In her decision, Judge Mary C. Jacobson of the New Jersey Superior Court found that, in the wake of Windsor, civil union partners were being denied equal access to federal benefits because they were not lawfully married. (The Windsor Court had explicitly stated that its “opinion and holding are confined to ' lawful marriages.” 133 S. Ct. at 2696.) Judge Jacobson reasoned that plaintiffs were not eligible for marital benefits that federal agencies had extended to same-sex married couples in light of Windsor, observing that “New Jersey same-sex couples in civil unions [were] now denied benefits solely as a result of the label placed upon them by the State.” Garden State Equality, N.J. Trial Court order at 52-53. The judge subsequently denied a motion by the State to stay her order directing that same-sex marriages be permitted as of Oct. 21.'

Gov. Christie announced that the State would appeal the trial court's ruling and, in fact, sought to expedite the appeal process by asking for “direct certification,” bypassing New Jersey's intermediate appellate court and appealing directly to the state Supreme Court. At the same time, the State moved for a stay of Judge Jacobson's order allowing same-sex marriages to begin in New Jersey.'

Judge Jacobson denied the State's motion for a stay in an opinion dated Oct. 10. The next day, the New Jersey Supreme Court granted the State's motion for direct certification, setting a briefing schedule and scheduling oral argument for the first week of January 2014. The state Supreme Court also took jurisdiction over the State's motion to stay the imminent onset of same-sex marriages pending resolution of the State's appeal on the merits.

In a 20-page opinion issued on Oct. 18, a unanimous New Jersey Supreme Court denied the State's motion for a stay. Writing for the court, Chief Justice Stuart Rabner echoed the lower court, noting:

[a]fter Windsor, a number of federal agencies extended marital benefits to same-sex couples who are lawfully married, but not to partners in civil unions. As a result, civil-union partners in New Jersey today do not receive the same benefits as married couples when it comes to family and medical leave, Medicare, tax and immigration matters, military and veterans' affairs, and other areas. The State Constitution's guarantee of equal protection is therefore not being met.

Garden State Equality, N.J. Supreme Court order at 4.

The court held that none of the State's arguments overcame “the reality that same-sex couples who cannot marry are not being treated equally under the law” and that “the harm to [same-sex couples] is real, not abstract or speculative.” Id. Analyzing the State's motion for a stay, the state Supreme Court determined that the State had failed to make a showing of irreparable harm if same-sex couples were allowed to wed during the pendency of the appeal. Id. at 11. In addition, the court held ' as the trial court had held before it ' that because the State's civil union statutory scheme “effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners” the State had failed to show a reasonable probability or likelihood of success on the merits.” Id. at 15.'

Three days after the New Jersey Supreme Court's dramatic ruling that the State had failed to show a likelihood of success on the merits in Garden State Equality, the first same-sex weddings were performed in the state. On the same day, Gov. Christie announced that he would withdraw the State's appeal on the merits. A statement issued by the Governor's office noted that Chief Justice Rabner had “left no ambiguity about the unanimous court's view on the ultimate decision in this matter when he wrote, 'same-sex couples who cannot marry are not treated equally under the law' ' .” New Jersey thus became the 14th state in the nation, together with the District of Columbia, to legalize same-sex marriage. (In November, through legislation, Hawaii and Illinois also joined the states where same-sex couples can marry.)

Pending Actions Seeking Marriage Equality

In the months following the Windsor decision, supporters of same-sex marriage in other states also made the courts their avenue of choice for pursuing marriage equality. In August, a state trial judge in Albuquerque, NM, ordered the Bernalillo County clerk to issue marriage licenses to same-sex couples, ruling that New Mexico laws that might seem to prevent them are unconstitutional. District Judge Alan Malott directed the clerk of Bernalillo County to join the clerks in two other counties, Santa Fe and Dona Ana, who had decided to issue marriage licenses to same-sex couples. But even as same-sex partners were allowed to marry in certain counties in New Mexico, the legality of same-sex marriage as a matter of state law was still unclear. As a result, New Mexico's 33 county clerks petitioned the state's highest court for guidance on the legality of same-sex marriage in the only state that neither banned nor permitted such marriages. Seven of the clerks had started issuing marriage licenses to same-sex couples, backed by district court rulings, like Judge Malott's, that affirmed the rights of same-sex couples based on a provision of the New Mexico Constitution that prohibits discrimination on the basis of sexual orientation. The case reached the state's highest court with unprecedented speed and, in October, the New Mexico Supreme Court heard oral arguments on the issue. It is uncertain when the court will rule.

Other actions on the same-sex marriage issue are pending in state and federal trial courts throughout the country: In Tennessee and Kentucky, for example, gay couples have filed suit seeking to overturn their state's same-sex marriage ban. A New Orleans couple filed a lawsuit seeking to force Louisiana to recognize their same-sex marriage, which was entered into in Iowa, where same-sex unions are legal. Federal Judge Bernard Friedman of the Eastern District of Michigan announced in October that he would hold a trial in February 2014 to determine whether Michigan's ban on same-sex marriage is constitutional. Lawsuits are also pending in Arkansas, Pennsylvania, Nevada and Virginia.

Conclusion

With victories at the ballot box, in legislatures and in the courts, the number of states in which same-sex marriage is legal has more than tripled since 2010. Now, proponents of marriage equality are seeking to overturn their states' bans on same-sex marriage on the basis of the Supreme Court's decision in Windsor. Particular focus has been placed on the language used by Justice Kennedy in his majority opinion in that case, when he declared that DOMA's purpose and effect was to disparage and injure those in same-sex marriages, subjecting them to a stigma that humiliates tens of thousands of children now being raised by same-sex couples. See 133 S. Ct. at 2693-94.

But despite other language in the opinion indicating that it was not meant to support marriage equality litigation in future state-by-state fights (see id. at 2696), Justice Antonin Scalia foresaw the use of Windsor to overturn same-sex marriage bans. In his dissent, Justice Scalia predicted that the majority had “arm[ed] well every challenger to a state law restricting marriage to its traditional definition.” Id. at 2710 (Scalia, J., dissenting). Time will soon tell just how well-armed same-sex marriage supporters have become in a post-Windsor nation.

Frank Gulino is a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers.

The Supreme Court's decision in United States v. Windsor , 133 S. Ct. 2675 (2013), has had immediate, positive effects on the aspirations of same-sex couples to be accorded the same rights long held by heterosexual spouses. In Windsor, the Court struck down as unconstitutional the definition of marriage ' as the union of one man and one woman ' contained in the federal Defense of Marriage Act (DOMA) (codified at 1 U.S.C. ' 7). The Court ruled that DOMA, by its restrictive definition of marriage, sought to ' and did ' injure same-sex spouses, legally married under state law, by denying them the array of federal benefits enjoyed by heterosexual married couples.

As Justice Anthony Kennedy wrote in his majority opinion, “DOMA writes inequality into the entire United States Code ' forc[ing] same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law ' .” Windsor, 133 S. Ct. at 2694. Justice Kennedy noted that DOMA prevented same-sex married couples from obtaining benefits they would otherwise be entitled to under more than 1,000 federal statutes and regulations. See id. at 2690, 2694.

In response to the Windsor ruling, there have been numerous changes in the administration of federal regulations; as a result, legally married same-sex couples are treated as married by the federal government for a variety of purposes, including taxation, Social Security and Medicare benefits, visa applications and benefits accorded to federal employees, including uniformed members of the Armed Forces and civilian employees of the Defense Department.

In addition, the Windsor decision has spurred or advanced court challenges to state bans on same-sex marriage: Within two months of the Supreme Court's ruling, same-sex couples commenced lawsuits aimed at gaining marriage equality in at least 15 states. Legal same-sex marriages also resumed in California after the Supreme Court ' on the same day it decided Windsor ' let stand a lower court decision invalidating Proposition 8, the ballot initiative which, like DOMA, had limited the definition of marriage to heterosexual unions in the nation's most populous state. See Hollingsworth v. Perry , 133 S. Ct. 2652 (2013). But perhaps the most dramatic effect of the Windsor decision to date was seen in New Jersey, which became the 14th state in the nation to legalize same-sex marriage as a direct result of the Supreme Court's invalidation of DOMA.'

Changes in Federal Regulations After Windsor

On the day that Windsor was decided, President Barack Obama issued a press release applauding the ruling as “a victory for [same-sex] couples who have long fought for equal treatment under the law” and for their children. Statement by the President on the Supreme Court Ruling on the Defense of Marriage Act, June 26, 2013, 1.usa.gov/1bgDMOn. In the same release, the President announced that he had directed the Attorney General to “work with other members of [the] Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

In the months following the President's directive, Government agencies announced numerous changes in the administration and enforcement of federal regulations. By the middle of September, one U.S. Government publication noted the following changes made in the wake of Windsor:'

The Department of Justice and Internal Revenue Service (IRS) ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. (It was noted that the IRS ruling applies irrespective of whether the couple currently lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.) The Social Security Administration now recognizes same-sex marriages for purposes of determining benefits. All beneficiaries in private Medicare plans now have access to equal coverage when it comes to care in a nursing home where their spouse lives. U.S. embassies and consulates will process visa applications for same-sex marriages just as they do for opposite gender spouses. The Department of Defense will extend benefits to same-sex spouses of uniformed service members and civilian employees. The Office of Personnel Management now provides benefits to legally married same-sex spouses of federal employees and annuitants.

USA.gov, Changes to Federal Benefits After the Supreme Court's Ruling on the Defense of Marriage Act (DOMA), Sept. 18, 2013, 1.usa.gov/186khFC.

Marriage Equality Comes to New Jersey

As a result of the Supreme Court's Windsor ruling, same-sex marriage became legal in the State of New Jersey, despite the opposition of a popular governor who had vetoed same-sex marriage legislation in 2012. The first legal same-sex marriage ceremonies were performed in the state on Oct. 21, 2013, following a dramatic ruling by the state's Supreme Court based on Windsor. See Garden State Equality v. Dow , __ N.J. __ (Oct. 18, 2013) (073328), available at http://bit.ly/1apOHm6 (N.J. Supreme Court order).

Several years earlier, the same court had held that same-sex couples in committed relationships are entitled to the same rights and benefits as married couples of the opposite sex. Lewis v. Harris , 188 N.J. 415, 423 (2006). The New Jersey Legislature responded to Lewis by enacting a law that created civil unions meant to guarantee same-sex partners the rights and benefits of marriage. See Civil Union Act, N.J.S.A. ” 37:1-28 to -36. But the legislation did not permit same-sex couples to marry.'

Following the legalization of same-sex marriage in neighboring New York in 2011, the New Jersey Legislature passed a bill in February 2012 that would have allowed same-sex marriage in the Garden State. But Governor Chris Christie quickly vetoed the bill, reaffirming his belief that voters should decide the issue of whether to legalize same-sex marriage in the state. See Kate Zernike, Christie Keeps Promise to Veto Gay Marriage Bill,
http://nyti.ms/1b2UVg4.

Meanwhile, plaintiffs in Garden State Equality v. Dow ' an advocacy group and six same-sex couples and their children ' had filed suit against New Jersey state officials in 2011, challenging the Civil Union Act. The suit alleged that the civil union status created by the State did not confer equal rights on same-sex partners. Then, following the Windsor decision striking down DOMA, the plaintiffs moved for summary judgment. And on Sept. 27, 2013, the trial judge in the New Jersey case issued a decision holding that
“[s]ame-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.” Garden State Equality, Docket No. L-1729-11, slip op. at 53 (N.J. Super. Ct. Sept. 27, 2013), available at http://bit.ly/15zBW7G (N.J. Trial Court order). In an accompanying order, the court also directed state officials to allow same-sex couples to marry beginning on Oct. 21, 2013.'

In her decision, Judge Mary C. Jacobson of the New Jersey Superior Court found that, in the wake of Windsor, civil union partners were being denied equal access to federal benefits because they were not lawfully married. (The Windsor Court had explicitly stated that its “opinion and holding are confined to ' lawful marriages.” 133 S. Ct. at 2696.) Judge Jacobson reasoned that plaintiffs were not eligible for marital benefits that federal agencies had extended to same-sex married couples in light of Windsor, observing that “New Jersey same-sex couples in civil unions [were] now denied benefits solely as a result of the label placed upon them by the State.” Garden State Equality, N.J. Trial Court order at 52-53. The judge subsequently denied a motion by the State to stay her order directing that same-sex marriages be permitted as of Oct. 21.'

Gov. Christie announced that the State would appeal the trial court's ruling and, in fact, sought to expedite the appeal process by asking for “direct certification,” bypassing New Jersey's intermediate appellate court and appealing directly to the state Supreme Court. At the same time, the State moved for a stay of Judge Jacobson's order allowing same-sex marriages to begin in New Jersey.'

Judge Jacobson denied the State's motion for a stay in an opinion dated Oct. 10. The next day, the New Jersey Supreme Court granted the State's motion for direct certification, setting a briefing schedule and scheduling oral argument for the first week of January 2014. The state Supreme Court also took jurisdiction over the State's motion to stay the imminent onset of same-sex marriages pending resolution of the State's appeal on the merits.

In a 20-page opinion issued on Oct. 18, a unanimous New Jersey Supreme Court denied the State's motion for a stay. Writing for the court, Chief Justice Stuart Rabner echoed the lower court, noting:

[a]fter Windsor, a number of federal agencies extended marital benefits to same-sex couples who are lawfully married, but not to partners in civil unions. As a result, civil-union partners in New Jersey today do not receive the same benefits as married couples when it comes to family and medical leave, Medicare, tax and immigration matters, military and veterans' affairs, and other areas. The State Constitution's guarantee of equal protection is therefore not being met.

Garden State Equality, N.J. Supreme Court order at 4.

The court held that none of the State's arguments overcame “the reality that same-sex couples who cannot marry are not being treated equally under the law” and that “the harm to [same-sex couples] is real, not abstract or speculative.” Id. Analyzing the State's motion for a stay, the state Supreme Court determined that the State had failed to make a showing of irreparable harm if same-sex couples were allowed to wed during the pendency of the appeal. Id. at 11. In addition, the court held ' as the trial court had held before it ' that because the State's civil union statutory scheme “effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners” the State had failed to show a reasonable probability or likelihood of success on the merits.” Id. at 15.'

Three days after the New Jersey Supreme Court's dramatic ruling that the State had failed to show a likelihood of success on the merits in Garden State Equality, the first same-sex weddings were performed in the state. On the same day, Gov. Christie announced that he would withdraw the State's appeal on the merits. A statement issued by the Governor's office noted that Chief Justice Rabner had “left no ambiguity about the unanimous court's view on the ultimate decision in this matter when he wrote, 'same-sex couples who cannot marry are not treated equally under the law' ' .” New Jersey thus became the 14th state in the nation, together with the District of Columbia, to legalize same-sex marriage. (In November, through legislation, Hawaii and Illinois also joined the states where same-sex couples can marry.)

Pending Actions Seeking Marriage Equality

In the months following the Windsor decision, supporters of same-sex marriage in other states also made the courts their avenue of choice for pursuing marriage equality. In August, a state trial judge in Albuquerque, NM, ordered the Bernalillo County clerk to issue marriage licenses to same-sex couples, ruling that New Mexico laws that might seem to prevent them are unconstitutional. District Judge Alan Malott directed the clerk of Bernalillo County to join the clerks in two other counties, Santa Fe and Dona Ana, who had decided to issue marriage licenses to same-sex couples. But even as same-sex partners were allowed to marry in certain counties in New Mexico, the legality of same-sex marriage as a matter of state law was still unclear. As a result, New Mexico's 33 county clerks petitioned the state's highest court for guidance on the legality of same-sex marriage in the only state that neither banned nor permitted such marriages. Seven of the clerks had started issuing marriage licenses to same-sex couples, backed by district court rulings, like Judge Malott's, that affirmed the rights of same-sex couples based on a provision of the New Mexico Constitution that prohibits discrimination on the basis of sexual orientation. The case reached the state's highest court with unprecedented speed and, in October, the New Mexico Supreme Court heard oral arguments on the issue. It is uncertain when the court will rule.

Other actions on the same-sex marriage issue are pending in state and federal trial courts throughout the country: In Tennessee and Kentucky, for example, gay couples have filed suit seeking to overturn their state's same-sex marriage ban. A New Orleans couple filed a lawsuit seeking to force Louisiana to recognize their same-sex marriage, which was entered into in Iowa, where same-sex unions are legal. Federal Judge Bernard Friedman of the Eastern District of Michigan announced in October that he would hold a trial in February 2014 to determine whether Michigan's ban on same-sex marriage is constitutional. Lawsuits are also pending in Arkansas, Pennsylvania, Nevada and Virginia.

Conclusion

With victories at the ballot box, in legislatures and in the courts, the number of states in which same-sex marriage is legal has more than tripled since 2010. Now, proponents of marriage equality are seeking to overturn their states' bans on same-sex marriage on the basis of the Supreme Court's decision in Windsor. Particular focus has been placed on the language used by Justice Kennedy in his majority opinion in that case, when he declared that DOMA's purpose and effect was to disparage and injure those in same-sex marriages, subjecting them to a stigma that humiliates tens of thousands of children now being raised by same-sex couples. See 133 S. Ct. at 2693-94.

But despite other language in the opinion indicating that it was not meant to support marriage equality litigation in future state-by-state fights (see id. at 2696), Justice Antonin Scalia foresaw the use of Windsor to overturn same-sex marriage bans. In his dissent, Justice Scalia predicted that the majority had “arm[ed] well every challenger to a state law restricting marriage to its traditional definition.” Id. at 2710 (Scalia, J., dissenting). Time will soon tell just how well-armed same-sex marriage supporters have become in a post-Windsor nation.

Frank Gulino is a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers.