In the wake of Windsor, there has been a series of challenges to various states’ statutory and constitutional bans on same-sex marriage. When Windsor was decided, same-sex marriage had been legalized in only 12 states and the District of Columbia. Many of these states had passed legislation legalizing same-sex marriage, such as New Hampshire, Rhode Island and New York, while other states, such as Maine, Washington and Maryland, held voter referendums that either prompted new laws to be passed or upheld existing legislation. Since Windsor, however, federal courts have mandated an additional 14 states to recognize same-sex marriage, making a total of 36 states that recognize same-sex marriage. Michigan and Arkansas recognized a limited group of same-sex marriages that were performed after federal district courts struck down bans, but before circuit court stays blocked marriages from continuing.
In 2014, the US Courts of Appeals for the Fourth, Seventh, Ninth and Tenth Circuits all upheld respective federal district court decisions that struck down state bans on same-sex marriage. These courts held that such bans violated the Fourteenth Amendment’s Equal Protection Clause. In addition, the Fourth Circuit held that a Virginia constitutional amendment that prohibited same-sex marriage violated the Due Process Clause of the Fourteenth Amendment. Other federal district courts that have struck down similar bans in 2014, include courts in Arkansas, Mississippi, Montana, Wyoming, Arizona and Texas. Many of the judges that ruled against the bans did so according to the “fundamental right” to marriage. Others drew comparisons between decisions allowing same-sex marriage to the decisions allowing racial integration in Brown v. Board of Education and interracial marriage in Loving v. Virginia. They see the decision surrounding same-sex marriage as further protecting the rights of all citizens.
Presently, the US Court of Appeals for the Fifth Circuit is reviewing district court rulings from Texas and Mississippi and a decision from the US Court for the Eastern District of Louisiana that upheld a law prohibiting same-sex marriage. The US Court of Appeals for the Sixth Circuit also upheld bans on same sex marriage in Ohio, Michigan, Kentucky and Tennessee in a 2-1 decision. The majority focused on questions of how marriage laws should be created, reasoning that a choice regarding marriage laws should come from the legislature and not the judiciary. The court also found that the original meaning of the constitution does not necessarily protect a right to same-sex marriage. This ruling reversed trail court decisions from federal district courts in each of these states striking down bans. The Sixth Circuit was the first federal circuit court to uphold state laws banning same-sex marriage, which resulted in a circuit split.
The circuit split demonstrates the primary arguments of advocates for both sides of the same-sex marriage issue. Those against bans on same-sex marriage argue that these laws violate equal protection, and want courts to review these laws with strict scrutiny. Those who support the constitutionality of the bans often argue that it is not for the judiciary to decide, and want courts to use rational basis review for laws based on what they argue are traditional views of marriage. While some states, such as Pennsylvania, decided not to appeal federal court decisions, many states and other litigants involved appealed to the US Supreme Court to make a final decision on whether the constitution protects same-sex marriage. After the court had initially declined to decide the matter in October 2014, it granted a writ of certiorari to the four cases coming out of the Sixth Circuit on January 16, 2014.