A three-judge panel of the 7th U.S. Circuit Court of Appeals unanimously struck down traditional marriage provisions in Wisconsin and Indiana today. A constitutional amendment approved in 2006 by voters limited marriage in Wisconsin to heterosexual couples, while state law did the same in Indiana. Neither state recognized same-sex marriages performed in other states.
During oral arguments in August, Ronald Reagan appointee Judge Richard Posner said bans on same-sex marriage amounted to “hate” and “savage discrimination.” Posner continued his extreme language in the court’s opinion on the case, stating, “homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world.”
The 7th Circuit is the third federal appeals court to reverse state laws on marriage.
The first federal appeals court ruling on same-sex marriage came in June, when a panel of judges from 10th Circuit ruled 2-1 against Utah’s constitutional amendment defining marriage between a man and a woman. The same court issued a similar ruling against an Oklahoma constitutional amendment. The 4th Circuit followed suit last month when it overturned bans on same-sex marriage in Virginia.
Decisions in other circuits were put on hold pending review by the Supreme Court, but the 7th Circuit declined to issue a stay of its decision. That makes the immediate future of same-sex marriage in Indiana and Wisconsin unclear. “We’re in a little bit of a holding pattern for a couple weeks,” said Scott McDonnell, the Dane County Clerk in Madison, Wisc., who had married gay couples after that state’s law was initially struck down by a federal judge.
The state of marriage
Until 2003, same-sex marriage was banned in all 50 states. But a lot has changed in the last decade. Eighteen states now allow same-sex marriage, either through legislative action or voter referendum. After the U.S. Supreme Court overturned the federal Defense of Marriage Act in 2013, judges in 17 states have struck down statutes upholding traditional marriage. Cases challenging traditional marriage laws have been filed in all states that ban same-sex marriage. The question of whether states can determine what constitutes marriage within their borders will eventually be decided by the nation’s highest court.
The map below shows the state of marriage in each state, with more details about each one listed below.
Judicial activism in 2013 and 2014:
- Virginia—Constitutional ban overturned by federal judge. Judge’s ruling stayed pending appeal. The 4th Circuit upholds the lower court ruling. The Supreme Court issued an emergency stay of the 4th Circuit ruling.
- North Carolina—State Attorney General Roy Cooper said he would no longer resist a challenge to the state's traditional marriage laws after the 4th U.S. Circuit Court of Appeals struck down Virginia's similar laws.
- Florida—A circuit judge rules same-sex couples can marry in the Florida Keys. Another circuit judge issues a similar ruling for Miami-Dade County. A federal judge strikes down the same-sex marriage law state-wide.
- Colorado—A state judge struck down the voter-approved same-sex marriage ban in July. A federal judge followed suit later that same month.
- Kentucky—A federal judge declared unconstitutional the state’s ban on same-sex marriage, approved by voters in 2004.
- Indiana—A federal judge declared unconstitutional the state’s statutory ban on same-sex marriage, enacted in 1997.
- Wisconsin—A federal judge ruled the state ban, approved by voters in 2006, was unconstitutional.
- Pennsylvania—A federal judge declares the state's voter-approved ban unconstitutional. Gov. Tom Corbett decides not to appeal.
- Oregon—A district judge declares its voter-approved ban unconstitutional.
- Idaho—A federal judge ruled the state's 2006, voter-approved ban is unconstitutional.
- Arkansas—A county circuit judge strikes down the state's ban, approved by voters in 2004.
- Ohio—Judge orders state to recognize same-sex marriages performed in other states. Ruling stayed pending appeal.
- Tennessee—A federal appeals court stays a lower court judge's orders that the state must recognize three same-sex marriages performed in other states. The ruling does not yet apply to other couples. The state is appealing the decision. Same-sex marriage was banned by constitutional amendment in 2006.
- Michigan—Constitutional ban overturned by federal judge. Judge’s ruling stayed pending appeal.
- Texas—Constitutional ban overturned by federal judge. Judge’s ruling stayed by the U.S. Supreme Court pending appeal.
- Kentucky—Judge orders state to recognize same-sex marriages performed in other states.
- Oklahoma—Constitutional ban overturned by federal judge. Judge’s ruling stayed pending appeal.
- Utah—Constitutional ban overturned by federal judge. Judge’s ruling stayed by the U.S. Supreme Court pending appeal. (2013)
Legalized in 2013:
- New Mexico—by state Supreme Court ruling
- Illinois—by state statute
- Hawaii—by state statute
- New Jersey—by a judge’s ruling
- California—by a federal judge’s ruling in 2010. The ruling did not go into effect until the Supreme Court upheld it in 2013.
- Minnesota—by state statute
- Delaware—by state statute
- Rhode Island—by state statute
Legalized in 2012:
- Maine—by voter referendum
- Maryland—by voter referendum
- Washington—voter referendum
Legalized in 2011 and 2009:
- New York—by state statute (2011)
- New Hampshire—by state statute
- Vermont—by state statute
- Iowa—by state Supreme Court ruling
Legalized in 2008:
- Connecticut—by state Supreme Court ruling
- Massachusetts—by state supreme court ruling
Banned in 2012:
- Nevada—Constitutional ban upheld by a federal judge, under review in federal appeals court
- North Carolina—by constitutional amendment
Banned by constitutional amendment in 2008:
Banned by constitutional amendment in 2006:
- South Carolina
- South Dakota
Banned by constitutional amendment in 2005 and 2004:
- Kansas (2005)
- Louisiana—Constitutional amendment upheld by federal judge.
- North Dakota
- Oregon—Recognizes same-sex marriages performed in other states
- Nebraska—by constitutional amendment in 2000
- West Virginia—by state statute in 2000
- Alaska—by voter referendum in 1998
- Indiana—by state law in 1997
- Pennsylvania—by state statute in 1996
- Wyoming—by state statute in 1977