Breaking the Marriage Bans

More courts void state same-sex restrictions.

Does last year’s landmark Supreme Court judgment in favor of same-sex-marriage rights apply to the states? Lower-court judges say yes–even in some unlikely places. From Utah to Oklahoma, Kentucky to New Mexico, federal courts are ruling that state laws limiting marriage to opposite-sex couples now violate the Constitution.

The most recent in this line of decisions came in tradition-drenched Virginia. U.S. District Judge Arenda Wright Allen struck down the Old Dominion’s ban on Feb. 13, declaring that laws against same-sex marriage must fall today for the same reason that laws against interracial marriage were overturned nearly 50 years ago. Consenting adults, not the government, have the right to choose their marriage partners.

The lower-court judges are filling in a blank left by the majority ruling in U.S. v. Windsor last summer. Justice Anthony Kennedy’s opinion striking down the federal Defense of Marriage Act paid tribute to the traditional role of states in regulating marriage. But Justice Antonin Scalia, in his bitter dissent, scoffed at this nod to federalism as “legalistic argle-bargle.” By finding “no legitimate purpose” behind the congressional ban on federal benefits for same-sex couples, Kennedy gave challengers to state marriage laws the ammunition they needed to win, Scalia declared.

Sure enough, the lower courts have breezed past the argle-bargle to focus on Kennedy’s categorical assertion that traditional mores cannot justify discrimination against same-sex couples. As U.S. District Judge Robert Shelby of the conservative bastion of Utah put it, “The State’s current laws … demean the dignity of these same-sex couples for no rational reason.” Senior Judge Terence Kern echoed the theme in Oklahoma, another unlikely setting for social revolution.

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