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Gay marriage bans toppled in year since DOMA ruling. But it's not over.

Lower courts have rejected gay marriage bans in 13 states since the US Supreme Court nixed the Defense of Marriage Act one year ago. But the issue is destined to return to the high court, where one justice in particular will hold sway.

By , Staff writer

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    Same-sex couples (and supporters) take a ‘selfie’ after at first being refused marriage licenses in Appleton, Wis. The overall issue is headed to the US Supreme Court.
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The national debate over the constitutionality of same-sex marriage may ultimately come down to a single word: dignity.

To be more precise, it may come down to a single US Supreme Court justice’s conception of what “dignity” means within the realm of constitutional protections.

The justice is Anthony Kennedy. As the fifth and deciding vote on gay rights issues at the high court, it is Justice Kennedy who probably will decide how any Supreme Court showdown over same-sex marriage is to be resolved.

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Kennedy’s unrivaled power to shape rights and protections for gay Americans was on full display a year ago, on June 26, 2013, when he announced the majority opinion in US v. Windsor.

The decision struck down a key part of the federal Defense of Marriage Act (DOMA), a law that barred same-sex married couples from receiving the same federal benefits as heterosexual married couples – even when they resided in a state that gave full recognition to gay marriages.

In the year since that 5-to-4 decision, gay and lesbian couples have filed more than 80 lawsuits citing the Windsor decision as authority to invalidate same-sex marriage bans across the country.

The results have been swift and one-sided: Within the past year, state statutes and constitutional amendments banning gay marriage have been struck down as unconstitutional in 13 states.

The highest courts in New Jersey and New Mexico and a state judge in Arkansas invalidated bans in those states. Federal judges struck down similar bans in 10 other states – Utah, Oklahoma, Virginia, Texas, Michigan, Idaho, Oregon, Pennsylvania, Wisconsin, and Indiana.

In four other cases, federal judges ordered states to recognize same-sex marriages performed in other jurisdictions. The states are Kentucky, Ohio, Tennessee, and Indiana.

In the most significant decision yet, a divided three-judge federal appeals court panel in Denver ruled on June 25 – the eve of the anniversary of the Windsor decision – that Utah's ban on same-sex marriages violated a fundamental right to marry regardless of sexual orientation. 

The one-sided string of decisions is contributing to a growing sense of inevitable victory within the gay rights movement. And it is setting off alarm bells among those seeking to preserve the traditional definition of marriage as a union of one man and one woman.

To be sure, the legal battles are by no means over. Appeals are pending in the Arkansas Supreme Court as well as in five federal circuit courts. More appeals are expected.

There is no doubt that the dispute is ultimately headed to the US Supreme Court – perhaps as early as next term.

Given that trajectory, virtually every legal brief is written with an eye toward Kennedy.

Although he is at the center of the debate, Kennedy has carefully avoided tipping his hand as to how he may vote in a future showdown.

The recent landslide of gay rights victories in the wake of the Windsor decision has surprised some legal analysts, in part because Kennedy’s decision in the case avoided making sweeping constitutional pronouncements about a fundamental right to marry or the propriety of state laws upholding the traditional view of marriage.

Instead, the central holding in Windsor was quite narrow, and Kennedy seemed to go out of his way to offer both sides in the gay marriage debate a jurisprudential nod.

At one point, the justice referred to the “unquestioned authority of the States” to define marriage. But he also made clear that any laws defining and regulating marriage must respect individual constitutional rights.

Kennedy cited the 1967 Supreme Court ruling in Loving v. Virginia, a landmark decision striking down that state’s ban on interracial marriage.

The aptly named Loving decision coined the term “freedom to marry,” a phrase highlighted by gay marriage advocates as evidence of a broadly defined fundamental right to marry.

But a single citation is hardly a decision on the merits, critics say. And an effort by Kennedy to frame the underlying issues is also not a decision on the merits, they say.

Neither Kennedy nor the Supreme Court has ever announced a decision establishing that the fundamental right to marry embraces same-sex couples – at least not yet.

Nonetheless, seven of the 10 federal judges who struck down state gay marriage bans in recent months have done so in part by finding the existence of a fundamental right to marry that includes same-sex couples.

Critics say such decisions are “lawless” and a product of activist judges seeking to impose their own social policy preferences by invalidating choices made by voters and lawmakers.

“Justice Kennedy never said in Windsor that there was a fundamental right to marry or that the Loving v. Virginia description of the fundamental right to marry applies to a completely redefined notion of the institution,” says John Eastman, chairman of the conservative National Organization for Marriage and a constitutional law professor at Chapman University School of Law in Orange, Calif.

“These trial judges are anticipating where the court might go in the next case, but they are doing that in explicit violation of reigning Supreme Court precedent on this subject,” Professor Eastman says.

Michael Dorf, a constitutional law professor at Cornell University in Ithaca, N.Y., and a former law clerk for Kennedy, disagrees.

“They are not violating anything,” he says of the lower court judges. “They are, by my lights, logically extending [the Loving and Windsor decisions].”

Nonetheless, he concedes that a more conservative judge “might not read those cases as broadly.”

In her May 13 decision invalidating Idaho’s gay marriage ban, US Magistrate Judge Candy Dale cited four opinions – three of them written by Kennedy plus the Loving decision – as establishing a foundation for her ruling.

“The logic of these precedents virtually compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they seek the benefits and responsibilities of civil marriage,” she wrote.

She added: “While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision.”

Gay rights advocates praise Judge Dale and other like-minded jurists as civil rights heroes destined to be remembered on the right side of history. The impassioned rhetoric in some of their opinions suggests agreement with that assessment.

“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history,” US District Judge John Jones declared on May 20 while striking down Pennsylvania’s gay marriage ban.

Currently, 19 states and the District of Columbia permit same-sex marriages.

In contrast, 31 states continue to recognize marriage as a union between one man and one woman. They have taken that action by passing constitutional amendments or state statutes.

Three of the 19 states that allow gay marriage passed statewide ballot initiatives, eight states and the District of Columbia broadened their marriage laws by passing legislation, and recognition of same-sex marriage arrived at eight other states by judicial decree.

Gay rights advocates are hoping for a US Supreme Court ruling that sweeps away all remaining 31 bans in one landmark decision, thus establishing same-sex marriage as a constitutional right in all 50 states.

Defenders of the traditional definition of marriage argue that the issue should be resolved through the political process, with voters deciding the issue for themselves on a state-by-state basis.

Lawyers for same-sex couples reply that constitutional rights cannot be denied or limited by majority vote and that the courts have a duty to uphold such rights.

The debate pits two basic legal approaches, federalism versus individual liberty. Through the years, Kennedy has emerged as a champion of both.

But there is one aspect of Kennedy’s DOMA opinion that seems to tip the balance in favor of gay marriage, legal analysts say. It is the justice’s focus on dignity and how it fits into the Constitution’s protection of individual liberty.

The word “dignity” appears nine times in the 26-page DOMA opinion. It was no accident.

Over the years, Kennedy has developed a sort of jurisprudence of dignity, using the word in a number of contexts and, sometimes, in place of more traditional and precise constitutional tests.

When the US government overstepped its authority and empowered residents to sue their own state government in federal court, Kennedy swung into action on behalf of the demeaned state of Maine.

In striking down the federal statute in question, he joined the court’s conservatives to remind Congress that under the system of federalism set up by the Founding Fathers, the states were entitled to a higher level of respect.

“They are not relegated to the role of mere provinces or political corporations, but retain the dignity ... of sovereignty,” Kennedy wrote in a 1999 decision.

This was Kennedy serving as a champion of federalism.

Two months ago, on April 22, Kennedy delivered an opinion upholding a statewide referendum passed in Michigan with 58 percent of the vote that banned the use of race in public college admissions programs.

A federal appeals court had struck down the affirmative action ban because the judges said it placed African-American supporters of race-based admissions programs at a political disadvantage.

Kennedy, joined by the court’s conservatives, rejected that position. “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds,” he wrote.

“Freedom does not stop with individual rights,” Kennedy said. “Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.”

Supporters of constitutional amendments passed by statewide ballot initiatives upholding the traditional definition of marriage read those sentences with great interest. Many lawyers on that side of the dispute hastily included citations to the decision in their briefs.

But Kennedy’s conception of dignity doesn’t always support the states’ rights position.

Last month, on May 27, Kennedy delivered an opinion that invalidated the procedure used by a handful of states to determine whether death row inmates were exempt from facing capital punishment because they had been diagnosed with a significant mental disability.

Florida used a strict cutoff. If tests showed a condemned inmate’s IQ to be above 70, the inmate was deemed eligible for execution. Kennedy, joined this time by the court’s liberals, said the state’s test was too rigid.

“Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world,” Kennedy wrote.

“The States are laboratories for experimentation,” he said, “but those experiments may not deny the basic dignity the Constitution protects.”

With a few changes, those two sentences could form the core of a decision establishing a 50-state requirement for same-sex marriage recognition.

This time, it was gay rights advocates who read those sentences with great interest, and lawyers on that side of the dispute have begun quoting that decision in their briefs.

But this approach raises a question: What does Kennedy mean when he talks of “the basic dignity the Constitution protects?”

Is it the “dignity” of the states to enact laws and constitutional amendments without interference from the US government under the Founders’ system of federalism?

Is it the “dignity” of state voters to decide for themselves how to resolve thorny social issues without being second-guessed by unelected federal judges?

Or is it the “dignity” of every American to live the blessings of liberty? And, if so, which of those blessings are fundamental enough to rate constitutional protection?

On one level, “dignity” is easy to understand. The Constitution requires the government to treat individuals as any person would want to be treated. According to Kennedy, this requirement stems not just from the guarantee of equal protection and equal treatment, but also from the Constitution’s guarantee of individual liberty.

So how does one define the scope of the constitutional right?

Since Kennedy sits at the center of the court and can control the outcome of the case, he gets to decide who is demeaned and who is adequately dignified. It is enormous power, and the implications of it are playing out in courthouses across the country – right now.

Critics say this approach is a flawed system of judging because it renders the law malleable to the whims of one judge or another.

“This is a dangerous thing when the courts think that they get to make up a standard or a right and use it to void the considered policy judgment of the people,” says Eastman of the National Organization for Marriage.

“One person who is the swing vote becomes effectively the king on all issues,” he says. “That is not our constitutional system.”

Others reject such concerns. Among them is a growing roster of judges across the country.

“I don’t think any of this really matters,” Professor Dorf says.

“The real question is whether the Supreme Court one way or the other is going to find there is a constitutional right to same-sex marriage,” he says. “I think the smart money is on [the high court voting] ‘yes.’ ”

He adds: “It is just a question of when.”

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