Plaintiffs in Virginia's gay marriage case celebrate victory in Norfolk on Valentine's Day. / Bill Tiernan, AP
WASHINGTON -- Same-sex marriage is on a roll in the nation's courts, signaling a mad dash back to the Supreme Court just months after its victories there last June.
A federal judge's decision late Thursday striking down Virginia's sweeping ban on gay and lesbian unions was but the latest in a string of rulings in some of the nation's most conservative states.
The rapid-fire opinions from federal judges in Virginia, Oklahoma and Utah striking down gay marriage bans, and from Kentucky and Ohio on more narrow issues, come on top of state court rulings in New Jersey and New Mexico in recent months, as well as Nevada's decision not to defend its gay marriage ban in court.
One after another, judges have used decades of Supreme Court opinions to back up their findings that gay and lesbian couples deserve the same marriage rights as heterosexuals. Judge Arenda Wright Allen even quoted Mildred Loving, whose case in Virginia struck down bans on interracial marriage, at the beginning of her eloquent 41-page decision.
But more than anything else, it was last June's ruling in United States v. Edith Windsor that has sent judges ever since to one side of the argument - just as Justice Antonin Scalia predicted in angry dissent. That 5-4 decision, written by Justice Anthony Kennedy, said the Defense of Marriage Act's ban on federal benefits for legally married same-sex couples was unconstitutional.
"Windsor is the gift that keeps on giving," said Roberta Kaplan, who represented Windsor in her battle to win federal marriage benefits. "In his opinion for the court, Justice Kennedy uses the word 'dignity' 11 times in 23 pages. According to the dictionary, the word 'dignity' means 'the quality or status of being worthy of honor or respect.'
"Sometimes, it's the simplest and most obvious things that say the most. At its core, what Windsor stands for is the incredibly simple, yet incredibly powerful proposition that every single one of us has equal dignity and that that dignity must be respected under the law."
Wright Allen went so far as to quote Scalia's warning in her ruling: "As I have said, the real rationale of (the Windsor opinion) is that DOMA is motivated by 'bare . . . desire to harm' couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status."
Like the federal district court decisions that preceded hers, Wright Allen found that marriage is a fundamental right; that depriving some citizens of that right harms both the couples and their children; and that it benefits no one.
"These arguments are so compelling, and the arguments presented against marriage equality are so weak, judge after judge after judge, irrespective of their background, has determined that we cannot any longer in this country withhold the fundamental right to marriage," said Theodore Olson, one of the lead lawyers in the Virginia case.
Opponents of same-sex marriage aren't giving up, of course, but they are on a losing streak.
"The U.S. Supreme Court has said that states have the pre-eminent duty of defining marriage," said Brian Brown, president of the National Organization for Marriage. "The people of Virginia did just that in voting overwhelmingly to affirm marriage as the union of one man and woman. That decision should be respected by federal judges, and we hope that the U.S. Supreme Court ends up reversing this terrible decision."
What remains to be seen is whether the high court is forced to take a case in its next term, beginning in October, or if it can wait longer for more states to switch sides. As it stands, 17 states and the District of Columbia have approved same-sex marriage -- but in 33 states it remains illegal, and the court traditionally is loath to overrule so many states.
One possibility would be for the justices to accept a case posing a lesser issue, such as requiring states to recognize marriages from other states. That was part of the Defense of Marriage Act that wasn't challenged last year. What fell was the federal government's refusal to grant marriage benefits to same-sex couples.
"I think much now depends on Justice Kennedy and the pace at which same-sex marriage cases are moving," said Carl Tobias, a law professor at the University of Richmond. "Some justices and others have expressed concerns about 'nationalizing' this issue and other issues at the Supreme Court level, which can limit state-by-state resolution."
That could be a reason to delay granting another Supreme Court case, but the justices may not have that chance. Once federal appeals courts begin striking down state bans, their rulings would apply to a geographic swath of states unless the high court intervenes and sets a national standard.
And once it steps in, plaintiffs, lawyers and advocates predict, a ruling declaring gay marriage bans unconstitutional will be inevitable.
Said David Boies, the other lead lawyer in the Virginia case: "I don't think you can come out two ways on this."
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