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Marriage Litigation Landscape

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Marriage Litigation Landscape

In states across the country, same-sex couples are fighting in state and federal courts to bring marriage equality to their homes and, eventually, the entire nation. By challenging state bans on same-sex marriage, these couples are taking a courageous stand to see these discriminatory laws eliminated. The map below illustrates the current marriage litigation landscape. While these marriage cases are in various stages, we want to provide you with a brief update on six marriage cases that have seen some important developments in the past couple of months and also let you know that you can visit hrc.org/marriage for ongoing updates on all of the marriage cases.



Two challenges to Virginia’s ban on marriage for same-sex couples were filed in federal courts earlier this year. The first case – Bostic v. Rainey – the American Foundation for Equal Rights (AFER) and the legal team behind the Prop 8, Ted Olson and David Boies, are representing two same-sex couples who are challenging the ban. In a separate case, Harris v. McDonnell, two same-sex couples are also fighting against the ban while being represented by Lambda Legal and the American Civil Liberties Union. On January 23, newly-elected Virginia Attorney General Mark Herring announced that he would no longer defend the marriage ban in court, instead arguing that the measure is unconstitutional. A key hearing in the Bostic case was scheduled for January 30, but due to inclement weather, the hearing has been postponed and no new date has been scheduled yet.


In Kitchen v. Herbert, a group of same-sex couples filed suit in federal court challenging Utah’s ban on marriage for same-sex couples. On December 20, a trial judge ruled on behalf of the plaintiffs, declaring the ban unconstitutional, thereby directing the state to grant marriage licenses to gay and lesbian couples. Over 1,300 gay and lesbian Utahans were married before January 6, when the U.S. Supreme Court, upon the state’s request, put further marriages on hold while the case is appealed. Shortly after the hold was upheld, Attorney General Eric Holder announced that the marriages that took place prior to the hold would be federally recognized. The case will now be heard by the U.S. Court of Appeals for the Tenth Circuit, together with the Oklahoma marriage case, with oral arguments expected this spring. The National Center for Lesbian Rights is assisting the plaintiff couples with their appeal.


In Bishop v. Oklahoma, two lesbian couples filed suit in federal court challenging Oklahoma’s ban on marriage for same-sex couples. On January 14, a trial judge ruled on behalf of the plaintiffs, declaring the ban unconstitutional. However, the judge stayed his decision, meaning marriages will not begin in Oklahoma for now. The state has appealed that decision to the U.S. Court of Appeals for the Tenth Circuit, which has consolidated the appeal with that of the marriage equality decision in Utah (described above).


In DeBoer v. Snyder, a lesbian couple is challenging Michigan’s denial of second-parent adoption and marriage equality to same-sex couples in federal court. Last fall, the judge denied the state’s motion to dismiss the case and scheduled a trial to begin in late February.


In Obergefell v. Kasich, a married gay couple with one spouse who was terminally ill filed suit in federal court in order to ensure that their Maryland marriage would be reflected on a death certificate issued by the state government. In July of last year, a trial judge granted a temporary restraining order requiring the state to recognize the marriage for that purpose and, on December 23, made that decision permanent. Sadly, the ill plaintiff, John Arnold, died in October but this challenge to ensure that his marriage, and that of every other same-sex couple, is respected, continues. The state has appealed the trial judge’s decision to the U.S. Court of Appeals for the Sixth Circuit.


In Sevcik v. Sandoval, a group of same-sex couples, represented by Lambda Legal, are challenging Nevada’s ban on marriage for same-sex couples in federal court. In November 2012, a trial court judge upheld Nevada’s marriage amendment as constitutional. The case is now on appeal before the U.S. Court of Appeals for the Ninth Circuit, which is expected to hear oral arguments this spring.

On the ground in Indiana

Outside of the courtrooms, HRC is also fighting a defensive battle in the state of Indiana. In order to prevent a hateful constitutional amendment that would ban same-sex marriage in the state. As of this week, the House amended the language in the bill to strip out any language referring to a ban on civil unions and same sex marriage. Should it pass the Senate, the legislation will likely be pushed to the November 2016 ballot. As a proud founding board member of Freedom Indiana, HRC has contributed cash, field staff, and other resources to the campaign. HRC has also helped deliver 6,356 postcards to legislators, facilitated 11,529 transfers to legislative offices and identified 1,129 volunteers to assist with the campaign.



These days change seems to be the only constant — especially for LGBT people and their families. The HRC Foundation recently published Protect Yourself and Those You Love: A Step-by-Step Guide to Life & Estate Planning for LGBT Americans and Their Families. The new guide walks you through the steps you should take now to protect yourself and your loved ones, regardless of your age, marital status or the state in which you live. We hope you will take time to review the new guide.


(Courtesy of HRC.org)




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