United States v. Windsor
Edith Windsor died at the age of 88 this week. Her legacy in bending the arc ever more toward justice — nationwide and indeed within the faith community — cannot be overstated.
In 2013, Edie won her Supreme Court case in a landmark victory for LGBTQ rights in the United States. I was newly out, trying to become a minister in a denomination that had just begun allowing the ordination of LGBTQ people. Even as my church still struggled to be fully inclusive toward LGBTQ people, many of us saw hope and possibility in stories like Edie’s. That hope kept us faithful — both to God and to our own queer identities.
State bans on same-sex marriage have been justified based on judicial precedent, states’ rights, regulating procreation, optimal child-rearing, and centuries-old tradition. Those reasons also have been loudly debunked.
When it convenes April 28 for one of the most historic oral arguments in its 226-year history, the Supreme Court will hear all of those arguments and more from five lawyers representing gays and lesbians on one side, and the states of Kentucky, Michigan, Ohio, and Tennessee on the other. But the justices also will have read what dozens of federal trial and appeals court judges have written.
Here’s a look at five major arguments cited by those appeals court judges in their rulings. In addition to the four Midwest states whose bans were upheld, the circuit courts struck down similar bans in Idaho, Indiana, Nevada, Oklahoma, Utah, Virginia, and Wisconsin.
1. Judicial Precedent
The first hurdle in the gay marriage debate facing lower court judges has been what to make of a 1972 Supreme Court ruling that denied marriage rights to a gay couple in Minnesota.
The one-line summary decision in Baker v. Nelson upheld the state’s ban on same-sex marriage “for want of a substantial federal question.” At the time, marriage was seen as the exclusive purview of the states.
Because of the wealth of judicial rulings that have come in the following four decades, most federal judges have reasoned that Baker does not tie their hands.
“Since Baker, the court has meaningfully altered the way it views both sex and sexual orientation through the equal protection lens,” the U.S. Court of Appeals for the 4th Circuit ruled in the Virginia case, Bostic v. Schaefer. The panel’s majority noted that the justices did not even mention the 1972 case when they struck down a key section of the federal Defense of Marriage Act in 2013.
In the case of Obergefell v. Hodges now before the Supreme Court, however, Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit differed with all the previous rulings.
“This type of summary decision, it is true, does not bind the Supreme Court in later cases,” he wrote for his panel’s 2-1 majority.
“But it does confine lower federal courts in later cases.”
2. State's Rights
Sometimes a court opinion is more than just a court opinion.
Justice Anthony Kennedy’s 26-page decision Wednesday striking down a federal ban on same-sex marriages offers a window into Americans’ rapidly shifting views of same-sex relationships — a shift that increasingly relies on matters of law and fairness, not moral or religious views.
At the same time, Justice Antonin Scalia’s biting 26-page dissent in United States v. Windsor reflects a set of cultural, religious, and social arguments that are losing ground in the court of public opinion and now, in the highest court of the land.
Houston lawyer Mitchell Katine came to the Supreme Court 10 years ago for the final chapter of Lawrence v. Texas, the landmark gay rights case in which the justices struck down state sodomy laws.
Neither Katine nor the other lawyers working for John Lawrence and Tyron Garner in their battle against Texas’ sodomy law imagined the length and breadth of Justice Anthony Kennedy’s majority decision, which struck down all remaining state sodomy laws.
As the Supreme Court prepares to issue two historic decisions on gay marriage this month, however, the judges and lawyers who worked on both sides of those earlier cases don’t expect anything quite so eloquent or all-encompassing from a cautious and conservative court.