INDIANAPOLIS – When a federal judge struck down the state’s gay marriage ban June 25, Indiana joined a string of decisions affirming equal rights since the U.S. Supreme Court ruled on the issue one year ago in United States v. Windsor.
In fact, since the Windsor case, those pushing for same-sex marriages have won 23 consecutive rulings, including tossing out Kentucky’s ban just last week.
I do think it’s remarkable that there hasn’t been a single decision going the other way, state or federal, whether the judges are Republican or Democratic appointees, said Camilla Taylor, marriage project director for Lambda Legal – a national law firm involved in Indiana’s lawsuit.
Complete unanimity. That is striking and unprecedented.
And lost in the shuffle of Indiana’s news was something even more significant. A federal appellate court in Denver for the first time sided with gay couples in declaring that Utah’s ban violated the 14th Amendment of the U.S. Constitution.
This is the case that is the furthest along procedurally and likely could be the one the U.S. Supreme Court rules on in the future.
In United States v. Windsor, the justices didn’t squarely address the issue of a state ban on gay marriage. Windsor, written by Justice Anthony Kennedy, invalidated part of a federal law that denied benefits to same-sex couples legally married in their states.
Curt Smith, president of the Indiana Family Institute, said the Supreme Court has to step in to clarify the issue.
He said the string of rulings against traditional marriage is because the other side has been judge shopping. They get to do that – find judges that, based on their life experiences or judicial record, will respond positively.
Smith said seeing the momentum change has been a bit discouraging, but he was uplifted by last week’s ruling in the Hobby Lobby case, which said some corporations can refuse to provide coverage for birth control because of their religious convictions.
I see the court saying, Wait a minute. People of faith aren’t second-class citizens,’ he said.
Taylor thinks the Supreme Court will weigh in sooner or later.
It doesn’t mean they have to take a case this coming term, she said. Sometimes they like to wait for a national consensus, which seems to have developed.
Right now, 19 states and the District of Columbia have legalized same-sex marriage, according to Freedom to Marry: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.
Of the 19, 11 were approved by citizens in a referendum or the state legislature; eight were decided by judges.
Marriage licenses have been issued to same-sex couples in Arkansas, Indiana, Michigan, Utah and Wisconsin following court orders, but those orders are either on hold or being challenged as they are considered by appellate courts.
According to Freedom to Marry, 31 states have laws or constitutional amendments that deny the freedom to marry to same-sex couples. These include eight states with constitutional amendments prohibiting the freedom to marry; 20 states with constitutional amendments prohibiting the freedom to marry and alternative forms of legal relationship protection; and three with state statutes, but not constitutional amendments, limiting the freedom to marry – including Indiana.
Smith argues that if state lawmakers had passed a constitutional amendment this year supporting Indiana’s definition of marriage between one man and one woman,the latest ruling might be different.
But instead of Hoosiers voting on the matter this November, lawmakers changed the language and pushed the fight into next year.
I would love to see the legislature act anyway, Smith said. I think if the Supreme Court is taking this up again, they are less likely to legislate from the bench if they see that citizens are engaged in the debate.
But Taylor said that even if the state approves the amendment, the Indiana Constitution can’t trump the U.S. Constitution. And she pointed out that federal judges have overturned state laws and state constitutional provisions, including Utah’s constitutional ban.