Marriage Equality: The 'States' of the Law Post-Windsor and Perry

93 Pages Posted: 24 Sep 2014 Last revised: 26 Feb 2015

See all articles by Monica Hof Wallace

Monica Hof Wallace

Loyola University New Orleans College of Law

Christopher Otten

Tulane University - A.B. Freeman School of Business

Date Written: September 23, 2014

Abstract

On June 26, 2013, the United States Supreme Court issued two historic rulings that simultaneously gave gay rights activists their most influential win, while it provided opponents of same-sex marriage with a welcomed delay in finding a constitutional right to same-sex marriage. In this article, amid growing acceptance of same-sex marriage, we will consider whether the Supreme Court will nationalize same-sex marriage in the near term. To do so, we will conduct a comprehensive analysis of each case decided since the twin landmark decisions. After briefly discussing what the Court said (and did not say) in Hollingsworth v. Perry and United States v. Windsor, we will outline the arguments surrounding federalism, liberty, due process, and equal protection, and apply them to the similar but different questions of marriage celebration as opposed to marriage recognition. We will then consider every post-Windsor court decision overturning state marriage bans, drawing similarities and distinctions when available. We will conclude by discussing the three circuit court decisions to address the issue as well as the pending case in Louisiana. Finally, we will present our prediction (for better or worse) of the outcome of these important issues.

Keywords: same-sex marriage, United States Supreme Court, family law, Hollingsworth v. Perry, United States v.Windsor

Suggested Citation

Hof Wallace, Monica and Otten, Christopher, Marriage Equality: The 'States' of the Law Post-Windsor and Perry (September 23, 2014). 16 Loy. J. Pub. Int. L. 215 (2014), Loyola University New Orleans College of Law Research Paper No. 2015-02, Available at SSRN: https://ssrn.com/abstract=2500493 or http://dx.doi.org/10.2139/ssrn.2500493

Monica Hof Wallace (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave., Box 901
Campus Box 901
New Orleans, LA 70118
United States

Christopher Otten

Tulane University - A.B. Freeman School of Business ( email )

7 McAlister Drive
New Orleans, LA 70118
United States

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