An Update on the State of the Union – Same-Sex Marriage

Kirby Stephens, KLJ Staff Editor 

A few weeks ago, the United States Supreme Court declined all seven petitions for certiorari of the same-sex marriage cases before the court.[1] This outcome had been foreshadowed by an earlier statement from Justice Ginsburg, who said that unless a circuit split arose on the issue there was “no need for us to rush.”[2] Justice Ginsburg was specifically referencing the forthcoming decision from the United States Court of Appeals for the Sixth Circuit, which heard arguments surrounding bans in Tennessee, Ohio, Kentucky and Michigan in August.[3]

According to, after the Supreme Court’s Monday denial of the petitions, “Same-sex couples are able to marry in 29 states, and will soon be free to marry in an additional 6.”[4] The website tracks marriage equality by state and offers listings of both recent cases and laws surrounding marriage and marriage bans. [5]

The constitutional law surrounding same-sex marriage is based largely around jurisprudence authored by Justice Kennedy. In Romer v. Evans, the Supreme Court invalidated a Colorado Constitutional Amendment that prohibited antidiscrimination laws aimed at protecting homosexuals as a violation of the equal protection clause.[6] The majority opinion, written by Justice Kennedy, explained that the classification drawn by the amendment “lack[ed] a rational relationship to legitimate state interests.”[7]

Similarly, in Lawrence v Texas, the Supreme Court held unconstitutional a Texas statute that made it illegal for two persons of the same sex to engage in “deviate sexual intercourse.”[8] The majority opinion, again written by Justice Kennedy, overruled the previous decision of Bowers v. Hardwick and emphasized, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”[9]

More recently, in United States v. Windsor, the Supreme Court struck down the definition of marriage in the federal Defense of Marriage Act. The Court, again led by Justice Kennedy, emphasized that “the principal purpose is to impose inequality” and that DOMA interfered with both the due process and equal protection rights protected by the Fifth Amendment.[10]  The Court continued to emphasize a lack of legitimate justification for such an action.[11]

This same argument about lack of sufficient justification that was highlighted in Romer, Lawrence, and Windsor was echoed in Judge Posner’s recent opinion in the United States Court of Appeals for the Seventh Circuit, which struck down marriage bans in Wisconsin and Indiana.[12] Posner emphasized that whether Indiana or Wisconsin could provide “a clearly offsetting governmental interest” in rejecting same sex-marriage was “really the only issue” in the case.[13] Posner reached the same conclusion as Justice Kennedy – in a word: no.[14]

While it is unclear exactly on what constitutional grounds, whether fundamental rights or equal protection, the right is based, the current trend seems to be toward recognizing a right same sex marriage. It is also clear the Supreme Court will not consider the issue at this time. The Supreme Court further emphasized this decision Friday when they declined a request by Idaho officials to postpone a lower court ruling that nullified Idaho’s ban on same-sex marriage.[15] It is unclear what the Supreme Court will do if a circuit split arises. Decisions are currently pending in the Fifth, Sixth, and Eleventh Circuits.[16] If one of those circuits upholds a marriage ban, it could force the Supreme Court into deciding an issue it has avoided for now.

[1] Amy Howe, Today’s orders: Same-sex marriage petitions denied, SCOTUS BLOG (Oct. 6, 2014, 10:41 am),….

[2] Associated Press, Ruth Bader Ginsburg Talks Gay Marriage, Politico (Sept. 16, 2014, 9:04 PM),….

[3] Id.; Steve Delchin, Still Waiting On Sixth Circuit’s Same-Sex Marriage Rulings As U.S. Supreme Court Denies Cert Petitions In Same-Sex Marriage Appeals From Three Other Circuits, Sixth Circuit App. Blog (Oct. 6, 2014),… Steve Delchin, Sixth Circuit Gearing Up To Hear Same-Sex Marriage Appeals On August 6, 2014, Sixth Circuit App. Blog (July 21, 2014),….

[4] Where State Laws Stand,, (last visited Oct. 13, 2014).

[5] Marriage Rulings in the Courts,, (last visited Oct. 13, 2014) []; States,, (last visited Oct. 13, 2014).

[6] Romer v. Evans, 517 U.S. 620 (1996).

[7] Id. at 632.

[8] Lawrence v. Texas, 539 U.S. 558, 563 (2003).

[9] Id. at 578; Bowers v. Hardwick, 478 U.S. 186 (1986).

[10] Id. at 2694-95; Though not immediately apparent from the language of the Fifth Amendment, it has been held to also include an analogue to the 14th Amendment’s equal protection clause, which then applies to the federal government. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954).

[11] Id. at 2696 (“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”).

[12] Baskin v. Bogan, No. 14-2386 to 14-2388, No. 14-2526, at 3 (7th Cir. Sept. 4, 2014) (“We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage.”).

[13] Id. at 13-14

[14] Id. at 38.(“ To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”).

[15] Lyle Denniston, No delay on Idaho same-sex marriages (FURTHER UPDATE for Alaska ruling), SCOTUS BLOG (Oct. 11, 2014, 7:04 AM),

[16] Id.