Supreme Court's DOMA ruling spurs state marriage battle

Gay rights supporters react to the news that the Supreme Court ruled that the Defense of Marriage Act (DOMA), which prevents the federal government from recognizing same-sex, is unconstitutional outside the Supreme Court in Washington, D.C. on June 26, 2013. EPA/JIM LO SCALZO

WASHINGTON — A U.S. Supreme Court ruling in late June has encouraged gay couples to challenge bans on same-sex marriage in states across the country.

"It's raining lawsuits," said one lawyer involved in several of the cases.

The legal storm follows the Supreme Court's June 26 decision striking down DOMA, the Defense of Marriage Act, a law that barred the federal government from recognizing same-sex marriages in states that permit them.

And although the five justices in the majority said their ruling was "confined to those lawful marriages,” it is nonetheless reverberating in courthouses around the nation.

In fact, such an outcome was predicted by one of the dissenters in the DOMA decision, Justice Antonin Scalia. "The majority arms well every challenger to a state law restricting marriage to its traditional definition."

Now, new challenges to state provisions that ban permitting or recognizing same-sex marriage have been filed by gay couples in six states: Arkansas, Kentucky, Louisiana, Ohio, Pennsylvania, and Virginia. 

Showdown in Ohio & Pa.

The Ohio case has already produced an interim decision in favor of a Cincinnati couple, John Arthur and James Obergefell. 

Arthur suffers from the neuro-muscular disease known as ALS, or Lou Gehrig's disease. In mid-July they flew in a specially equipped plane to Maryland, where same-sex marriage is legal, and were married as the plane sat on the tarmac.

When they returned home, they sought recognition for their union from Ohio, which does not permit same-sex couples to marry.

Federal Judge Timothy Black ruled in their favor, finding that Ohio has historically considered a marriage valid if it was legal in the state where it was performed.

"There is no legitimate state purpose served by refusing to recognize same-sex marriages in the states where they are legal," he wrote, citing the Supreme Court's DOMA decision. 

But Attorney General Mike DeWine said the state will appeal. "Ohio voters made it very, very clear" that they do not favor extending the marriage law, he said in late July. 

Meanwhile, Pennsylvania's top legal officer has taken the opposite position, refusing to defend her state's ban on same-sex marriage in a lawsuit brought on July 9 by the ACLU on behalf of 10 gay couples and one surviving partner. 

"I cannot ethically defend the constitutionality of Pennsylvania's version of DOMA when I believe it to be wholly unconstitutional," said Attorney General Kathleen Kane, a Democrat, leaving defense of the law to Governor Tom Corbett, a Republican.

Pennsylvania is also suing one of its own officials, D. Bruce Hanes, the Register of Wills in Montgomery County. He began issuing marriage license to gay couples in late July. The county is supporting him, claiming the state ban is discriminatory.

In another Pennsylvania case, a federal judge in late July cited the DOMA decision in ruling that Sarah Farley, who married Jean Tobits in a same-sex ceremony in Canada, was entitled to survivor's benefits paid by Tobits's law firm after she died of cancer.

Challenges to state bans have also been filed recently in federal courts in Kentucky and Virginia.

Picking battles

"The ACLU is fielding calls from all over the country," said James Esseks, director of the organization's Lesbian, Gay, Bisexual, Transgender & AIDS Project. "We're focusing on those where we believe we have the best prospects."

Greg Nevins, a staff attorney for the gay rights organization “Lambda Legal,” agrees.

“The feeling that you’re right and that you have justice on your side is part of the way to victory, but not all the way, " said Nevins. "There are a lot of strategic calls about where to file.”

Advocates for gay rights are hoping the Supreme Court’s June DOMA decision will also improve the likelihood for success of earlier lawsuits already working their way through the courts in Hawaii, Illinois, Michigan, New Jersey, New Mexico, Nevada, North Carolina, and Utah. Some produced decisions against permitting same-sex marriage and are now on appeal.

New Jersey Gov. Chris Christie's administration last week filed a legal brief urging a state court to "reserve the name of marriage for heterosexual couples." Christie's acting attorney general, John Hoffman, argued that it's the federal government that's discriminating by not granting the same legal recognition to civil unions, which the state has recognized since 2006, as it now does to marriages.

Prop 8 issues

In California, the state resumed issuing marriage licenses to same-sex couples after another U.S. Supreme Court ruling in late June. The court tossed out a challenge to a lower court ruling that struck down Proposition 8. Enacted by voters in 2008, the law had banned marriage for gay couples. 

Members of the group that put Prop 8 on the ballot have since asked the California Supreme Court to rule that the initiative remains the law in the state. They argue that the lower court ruling finding it unconstitutional applied only to the two gay couples who sued to block it.

The San Diego County clerk, who earlier filed a lawsuit of his own to revive the effect of Prop 8, last week dropped his court battle. The state supreme court is expected to rule within a matter of days on whether Prop 8's legal effect is dead.