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.