It’s just a matter of time. The fight for marriage equality has been won in the courts, thanks to the equality language added by Justice Anthony Kennedy to the pivotal Windsor ruling, a factor not initially readily apparent. Look at the results:
Twelve decisions have addressed a substantive aspect of marriage equality since Windsor, and equality has won in all 12—with the Virginia decision now joining decisions from Kentucky, New Mexico, Oklahoma, Utah, and West Virginia, and two decisions each in Illinois, New Jersey, and Ohio. But six other cases since Windsor have addressed different aspects of discrimination based on sexual orientation, such as discrimination on juries and employment benefits, and the side of equality has won in all six of those cases as well.
The tally is even starker when you look at the number of judges who have considered the issue. Since Windsor, in these 18 decisions, 32 different judges have considered whether Windsor is merely about the relationship between the state and federal governments or whether it is about equality. And all 32 of them have found for equality. In other words, 32 accomplished, intelligent lawyers, appointed by Democrats and Republicans, whose job it is to read precedent, have ruled for equality. Not a single one has disagreed.
OK. Scalia, Alito, Thomas and probably Roberts are fully prepared to differ when these cases reach the high court. But Kennedy?
Oh, and by the way:
One other phenomenon has occurred post Windsor that bears mentioning here. In Virginia and Pennsylvania, state attorneys general tasked with defending their state’s same-sex marriage bans have also read Windsor to mean that the ban is unconstitutional. In New Jersey, Gov. Chris Christie abandoned the state’s appeal of a decision striking down the New Jersey marriage ban. And now this week, Nevada’s attorney general, a Democrat, and its Republican governor, announced that they too, could not defend the state’s gay-marriage ban anymore. Why? Windsor.
Alas, Attorney General Dustin McDaniel is fighting equality in Arkansas. For now at least. If Circuit Judge Chris Piazza or federal Judge Kris Baker eventually follow a unanimous record around the country, perhaps he’ll rethink at the appeals level.