A Super January for Law Geeks – and for Equality!

By David Ward

If you’re a law geek who cares about LGBT equality, the past few weeks have been almost as exciting as the Super Bowl was for Seahawks fans!

The fight for marriage equality is surging across the country, even the reddest states.  Legal challenges to state bans on marriage for same-sex couples are now pending in more than 20 states – and new lawsuits are being filed every week.

This is producing headlines in some surprising places.  For example:

• On December 20, a federal judge struck down Utah’s ban on marriage for same-sex couples.  And in a welcome but unexpected step, both the judge and the Tenth Circuit Court of Appeals denied the state’s requests to put the ruling on hold pending appeal.  That meant that nearly 1,000 lesbian and gay couples were able to marry in Utah, until the U.S. Supreme Court finally granted the state’s request to stay the ruling on January 6.  

• Then on January 14, a federal judge in Oklahoma issued a ruling overturning that state’s anti-marriage law.  Remarkably, the Oklahoma case had been pending in the federal court system for nearly ten years – an incredible display of persistence by the plaintiffs and their attorneys.

• A challenge to Virginia’s ban on marriage equality will be argued in February - and this week, Virginia’s new Attorney General announced that he would not defend the state’s ban because he views it as unconstitutional.

And with less press attention, the Ninth Circuit Court of Appeals issued a decision recently that may have an even greater impact.  In its ruling in GlaxoSmithKline v. Abbott Laboratories, the Ninth Circuit held that a person cannot be excluded from a jury based on sexual orientation. Significantly, the court held that state discrimination against gays and lesbians must be subject to heightened judicial scrutiny under the U.S. Constitution’s equal protection clause - a standard that is very difficult for a state to overcome.

So what’s next?   Because so many lawsuits are pending across the country, we can’t know which court will be the next to issue a ruling in a marriage case.  But here are some things to watch in the coming months: 

All eyes on the Tenth Circuit

Both Utah and Oklahoma are in the Tenth Circuit Court of Appeals, a federal appellate court that covers many of the Mountain West and Plains states.  That means the appeals in both the Utah and Oklahoma marriage cases will be heard by the court.  The Tenth Circuit has announced that it will hear appeals in both cases on a very fast track, with arguments to be held in April.
   
As a result, the Tenth Circuit will likely be the first federal appellate court to rule on the constitutionality of state marriage bans since the U.S. Supreme Court’s landmark decision last June in United States v. Windsor, which struck down part of the so-called “Defense of Marriage Act.” 

And while the Tenth Circuit is not regarded as the most progressive appellate court in the country, the fact that the court refused to put the Utah marriage ruling on hold seems like an encouraging sign.

Don’t forget about the Ninth Circuit

There’s another marriage equality case pending in the Ninth Circuit Court of Appeals, which covers most of the western United States.  The case challenges Nevada’s ban on marriage for same-sex couples.  The case has been pending in the Ninth Circuit for more than a year – but it looks like arguments in the Tenth Circuit’s cases will be heard before the Ninth Circuit’s case.

Importantly, the Ninth Circuit’s ruling last week in the GlaxoSmithKline case means that the court should apply heightened judicial scrutiny to Nevada’s ban – a standard that will be very difficult for opponents of marriage equality to overcome.  

Indeed, one of the parties defending Nevada’s ban on marriage for same-sex couples just dropped its defense of the law earlier this week, based on the GlaxoSmithKline ruing.  And Nevada’s Attorney General is now pondering whether to continue the state’s defense of the law as well.

And then there’s the Supreme Court

Of course, it’s nearly inevitable that the Supreme Court will have the final word on the constitutionality of laws that ban same-sex couples from marrying.  And because the Tenth Circuit is “fast-tracking” the Utah and Oklahoma cases, this could happen even more quickly than expected.  

So keep your seat belts fastened!  If the rest of 2014 is as exciting as January, this is shaping up to be an incredible year for law geeks – and for equality.