Attorney General: States Need Not Defend Same-Sex Marriage Bans
Author: David B. Weisenfeld, XpertHR Legal Editor
February 27, 2014
The Obama administration has publicly offered support to state officials who will not defend their states' bans on same-sex marriage. In a speech Tuesday to a conference of state attorneys general in Washington, DC, Attorney General Eric Holder said, "I believe we must be suspicious of legal classifications based solely on sexual orientation."
Holder explained that state attorneys general are not required to defend laws they consider to be discriminatory. President Obama decided in 2011 that the Justice Department would no longer defend the federal Defense of Marriage Act (DOMA). Last year, the Supreme Court struck down DOMA in United States v. Windsor (June 27, 2013).
Since that ruling, the legal battle has shifted to the states. Holder noted that attorneys general in Nevada, Oregon, Pennsylvania and Virginia have backed away from enforcing same-sex marriage bans in recent months. And the trend is evident in the courts as well.
Virginia Ban Overturned
On February 13, a federal judge in Virginia struck down the state's longstanding same-sex marriage prohibition. In a sweeping opinion, US District Judge Arenda Wright Allen said, "The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry."
Judge Wright stayed the enforcement of her decision pending appeal by same-sex marriage opponents to the 4th Circuit Court of Appeals, which also covers Maryland, North Carolina, South Carolina and West Virginia. Maryland approved same-sex marriage in 2012.
Recognition in Kentucky
Meanwhile, a federal judge in Kentucky ruled on February 12 that the Bluegrass State must recognize same-sex marriages performed in other states. Kentucky's constitutional amendment banning gay marriage included a clause banning such recognition.
The case (Bourke v. Beshear) did not deal with the question of whether Kentucky can be required to issue marriage licenses to gay and lesbian couples. However, US District Judge John G. Heyburn II reasoned that the recent Supreme Court ruling in Windsor strongly suggests that Kentucky could not deny same-sex spouses the attendant benefits of recognition that it awards to opposite-sex spouses.
Oklahoma O.K.'s Win for Same-Sex Marriage Supporters
The decisions in Virginia and Kentucky came on the heels of a federal judge's ruling in Oklahoma that the state's law limiting marriage to heterosexual couples was unconstitutional. The holding, by US District Judge Terence Kern, would strike down a voter-approved state constitutional amendment if enforced. However, the court's holding does not require Oklahoma to recognize same-sex marriages performed in other states.
This result, in addition to one from December 2013, that had briefly allowed same-sex marriages in Utah, is being challenged in the 10th Circuit Court of Appeals. The fact that these rulings in Oklahoma, Virginia and Kentucky all involve southern and Midwestern states is significant and indicates that this trend bears continued watching.
Currently, 17 states plus the District of Columbia permit same-sex marriage. In addition, a number of federal agencies have extended marital benefits to same-sex couples who are lawfully married. That total may rise in the near future as Attorney General Holder's pronouncement may encourage other states to drop legal challenges.