There is a steady stream of headlines, almost weekly, about court cases being launched, or on state bans on same-sex unions either being upheld or struck down, and on attorneys general deciding not to defend their state’s ban.
It’s a legal maze that many people predict will end at the doorstep of the Supreme Court once again. When it ruled last June and struck down a portion of the Defence of Marriage Act to do with federal benefits and allowed same-sex unions in California, it did not issue a blanket decision on whether states could legally allow the marriages or not.
Legal challenges to state laws on same-sex marriage or legislative efforts are ongoing in at least 20 states. This week, yet another trial got underway, this time in Michigan, that will decide whether the state’s 2004 ban on same-sex marriage will remain intact. It is also considering the rights of the lesbian couple involved to jointly adopt children.
The 70-year-old judge hearing the case, Bernard Friedman, was appointed to the bench by Republican President Ronald Reagan in 1988. He rejected the state’s attempt to have the case thrown out and agreed to hear it but waited until after the Supreme Court decision for it to proceed.
With the Supreme Court decisions in hand, many advocates for marriage equality moved forward with legal challenges, buoyed by the rulings.
More than two dozen states prohibit same-sex marriage through amendments to their constitutions and proponents of marriage equality argue those amendments violate the federal constitution.
6 states not defending bans in court
“We’ve had this explosion of cases challenging these bans on federal constitutional grounds,” said Gary Buseck, legal director at Gay and Lesbian Advocates and Defenders, in an interview. “We’ve got litigation everywhere.”
And some court victories for supporters of same-sex marriage are being won in rather surprising states – such as Utah. A judge in the conservative state ruled in December that the state ban violates constitutional rights. That decision has been appealed and a stay was issued by the Supreme Court that prevented any marriages from going forward while the court battle plays out.
Soon after the Utah decision, a federal judge in Oklahoma, another conservative state, made a similar ruling. Two weeks ago, a Virginia judge also struck down that state’s ban.
Virginia is among six states now saying it won’t defend the same-sex marriage ban anymore. The others include Nevada, Oregon, Pennsylvania, California and Illinois, where legal battles have all been waged.
The attorneys general in those states clearly have the support of their federal counterpart, Eric Holder. The U.S. attorney general told the New York Times that they don’t have an obligation to defend their state laws banning same-sex marriage. He repeated the same message when he delivered a speech Tuesday at the attorneys general annual meeting in Washington.
He said that any decisions not defend laws must be “rare” and based on “firm constitutional grounds,” not on political disagreements.
“But in general, I believe that we must be suspicious of legal classifications based solely on sexual orientation and we must endeavour in all of our efforts to uphold and advance the values that once led our forebears to declare unequivocally that all are created equal and are entitled to equal opportunity,” he told his state counterparts Tuesday.
Holder draws praise and anger for advice
Holder’s view drew both praise and anger. Buseck said he’s happy Holder spoke out and that he’s right.
“You reach a point where some questions are so clear as a matter of law and if an attorney general deems a law to be blatantly unconstitutional it seems to me it is right for them to make the decision not to defend the law,” he said.
John Eastman, chairman of the board of the National Organization for Marriage, holds the opposite view and said it’s “preposterous” that Holder is advising his counterparts they don’t have to defend the bans.
“For him to encourage people not to defend them is to encourage lawlessness and quite frankly he ought to be impeached if he’s not going to take more seriously his oath of office,” Eastman said in an interview.
He said any attorney general that refuses to defend their state’s ban is breaching their ethical obligations to their client – the people of their state. If they won’t defend the ban because of their own moral position, they should appoint someone who will, Eastman said.
Wisconsin’s attorney general, J.B. Van Hollen, a Republican, didn’t appreciate Holder’s view either.
“It really isn’t his job to give us advice on defending our constitutions any more than it’s our role to give him advice on how to do his job,” he told the New York Times. “We are the ultimate defenders of our state constitutions.”
Meanwhile, some states are proceeding with laws relating to businesses refusing services to members of the gay community because of religious beliefs. A bill passed in Arizona is grabbing headlines this week as the governor faces pressure to veto it.
If it or any laws like it take effect in other states, they too, are sure to be subject to more legal battles.