state courts

By Craig J. Konnoth, Legal Research Fellow, The Williams Institute, UCLA School of Law. Mr. Konnoth's views are his own, and not those of any institutions or activities in which he is involved.

New York marks the fifth state in a row in which marriage equality has been achieved legislatively rather than through state court intervention: soon after Varnum v. Brien in Iowa, Vermont, New Hampshire, Maine and the District of Columbia all passed marriage recognition bills for same-sex couples legislatively (though Maine’s law was later overturned by voter referendum). This is part of a pattern: since Iowa, all other relationship recognition victories have been legislative: Rhode Island, Hawaii, Illinois and Delaware passed civil union laws; Washington, Wisconsin, and Nevada recognized domestic partnerships, and Colorado passed a designated beneficiaries bill. The only court victory on state recognition of same-sex marriage has been federal, with a district court striking down Proposition 8 in California. Contrast with early victories which were all court based – including marriage in Hawaii in 1993 (repealed by referendum) and Massachusetts (2003) and civil unions (Vermont), or events leading up to Iowa when the supreme courts of Connecticut and California also recognized marriage rights in quick succession. 

The issue is not that court-based strategies are important, as some commentators have argued. There have been numerous high-profile developments regarding marriage rights in the federal arena, including in immigration, bankruptcy, district and appellate courts. Yet these concern federal laws and benefits that spouses enjoy in the areas of bankruptcy, immigration, and taxation, and thus differ from the Proposition 8 litigation. However, is the battle for state marriage rights in state courts over?

The answer depends on how broadly you define the struggle for marriage equality. If one is simply talking about going to state court, and filing suit for the right to marry under the state constitution, the answer, I would argue, is probably “yes.” As of today, thirty states have banned marriage recognition by state constitutional amendment. In the remaining twenty states, six already recognize marriage rights. The remaining fourteen states include three states in which the supreme courts have already rejected challenges (Washington, New Jersey, Maryland, though activists recently re-filed in New Jersey, a possible exception), four other states (Wyoming, Minnesota, Indiana and Rhode Island) in which courts are Republican dominated (or dominated by Republican appointees –hardly an exact predictor of judicial voting patterns, but not an insignificant one either), and in another state, Maine, voters rejected marriage equality at the ballot, possibly making a court wary of going the other way on the issue. Finally, Minnesota and North Carolina seek to pass constitutional amendments banning marriage equality. The five remaining states, Pennsylvania, West Virginia, Delaware, New Mexico and Illinois, are not necessarily the best candidates for litigation, when the other options are also considered. Thus, in short, victories in these types of cases will be fewer and further between: the most promising litigation, I would argue, has already been filed.