The next wave of challenges

Posted: January 24th, 2014 | Columns, Featured, Legally LGBT | 2 Comments

Paul McGuire | Legally LGBT

2013 was a great year for marriage equality. The U.S. Supreme Court’s decision in Windsor brought federal recognition of same-sex married couples.

MarriageGraphic webWhen Windsor was decided, it was unclear what effect it would have on the bigger fight, the fight to strike down all remaining same-sex marriage bans. Recent decisions in two of the most conservative states in the country indicate that federal judges are no longer swayed by the typical arguments in favor of retaining the bans.

Though it is hard to predict what will happen, the recent decisions in Utah and Oklahoma are the start of the next wave of cases that will ultimately end in a decision by that same Supreme Court. On Dec. 20, 2013 a federal judge in Utah ruled that Utah’s ban on same-sex marriage was unconstitutional. Then on Jan. 14, 2014 an Oklahoma federal judge ruled that Oklahoma’s ban on same-sex marriage was unconstitutional.

Paul McGuire

Paul McGuire

The Utah case was big because the Mormon Church is huge there. The same church was central in providing the funding for Proposition 8 in California. It also led to some immediate marriages because the District Court judge and the 10th Circuit Court of Appeals both denied requests from the state to stay the decision.

Though as an activist pushing for change I applaud the immediate results we saw in Utah, I recognize that the cases should have been stayed from the start. In most cases — including the challenge to Prop. 8 and the Windsor case — a decision by a lower court judge is immediately stayed until all appeals are finished.

A stay is entered because courts recognize that appeals take time and there is always a possibility that a broad decision by a district court judge could be narrowed or even reversed on appeal. The Utah attorney general requested a stay with the U.S. Supreme Court that was granted by the full court without comment as to the reasons.

While some see the granting of the stay as a huge setback, the lack of comment by any of the judges is telling. It indicates that the justices do not want to indicate how they will rule when one of these cases is ultimately before them.

The Utah decision is also important because of how the judge approached the question of the fundamental right involved. The fundamental right to marry includes the ability to choose one’s partner. Just as the state could not arrange marriages and choose whom citizens marry, the state cannot interfere with an individual’s choice to marry a certain person.

The judge explains that the right to marry is meaningless for a lesbian woman if she cannot marry a woman. One of the plaintiffs in the case explained to the court her previous attempts to form intimate bonds with men before finally accepting that she can only sustain a marriage with another woman.

“The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.”

In Oklahoma the judge stayed the decision immediately, meaning there won’t be any new marriages performed in Oklahoma until after appeals are finished. The entry of the stay was likely influenced by the Supreme Court’s grant of the stay in Utah.

What makes both of these cases significant is that they are the first decisions striking down state bans on same-sex marriage since the Windsor case was decided. Because the decisions came down in conservative states it is guaranteed that the states will fight them on appeal all the way to the Supreme Court. This means neither case will have any of the issues of standing that allowed the Supreme Court to avoid the central issue, whether the Constitution requires states to allow same-sex marriage, in the Prop 8 challenge.

Both cases will be appealed to the 10th Circuit Court of Appeals. This means the decision in the Utah case will likely be followed in the Oklahoma case. Both judges followed similar lines of reasoning to conclude that the state’s justifications did not survive rational basis. The states argued that same-sex marriage bans were important to support responsible procreation and provide the optimal environment for raising children.

The judges reasoned that if children are best raised in a household with two married parents that the state should allow same-sex couples to marry for the stability of their households. Neither ban prevented same-sex couples from raising children though such a limitation would not likely be found constitutional.

Many other lawsuits are now pending throughout the country challenging both same-sex marriage bans and state’s lack of recognition of couples married in other states. Though the Supreme Court does not accept every case appealed to it, it seems likely that at least one of these challenges will lead to a decision by the Supreme Court.

—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at


  1. Kenny says:

    If the 10th circuit rules that those bans can stand, how much will that influence other circuits? And isn’t the only other circuit ruling the Citizens for Equal Protection vs Bruning. How much weight will that be accorded?

  2. John says:

    The state of Utah did not request a stay in their filing in the event of un-favorable ruling. The district court looked at the probability of success on the merits and determined the standards for a stay were not met. Even the 10th Circuit Court of Appeals agreed with the district court and denied a stay. The district court was well within its judicial discretion in not granting a stay. SCOTUS was too in granting the stay.

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