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

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