Where things stand on marriage

Timothy Kincaid

October 6th, 2014

marriage 2014

Dark purple: marriage equality
Light purple: covered by today’s denial of certiorari
Red: everything but the name domestic partners

It’s now become difficult to keep track of the states which have equality, those who kinda sorta may, and those who today do not. The current marriage position is as follows:

First Circuit

All states in the First Circuit have marriage equality either through legislative action or state court rulings:

* Maine
* New Hampshire
* Massachusetts
* Rhode Island

(Puerto Rico is within the First Circuit but is not directly impacted by today’s ruling)

Second Circuit

All states in the Second Circuit have marriage equality through legislative action:

* Connecticut
* New York
* Vermont

Third Circuit

* Delaware has marriage equality through legislation
* New Jersey has marriage equality through state court ruling
* Pennsylvania has neither marriage nor other recognition nor is it directly impacted by this decision. marriage equality through a federal court ruling that was not appealed by the state.

Fourth Circuit

* Maryland has marriage equality through legislation
* The Fourth Circuit has ruled that same-sex marriage bans are a violation of the US Constitution. That ruling did not receive a hearing before the high court and Virginia has marriage equality through today’s denial of certiorari
Three states are but a legal formality from marriage equality:
* West Virginia
* North Carolina
* South Carolina

Fifth Circuit

The Fifth Circuit has not yet ruled on marriage equality appeals.

* In February a federal judge ruled that Texas’ marriage ban is unconstitutional. That ruling has been appealed but not heard. It is on stay.
* Judge Martin Feldman ruled that Louisiana’s marriage ban is just hunky-dory, becoming the first federal ruling for inequality since the Supreme Court’s ruling on Windsor. That ruling has been appealed but not heard.
* There has not been a ruling about the constitutionality of Mississippi’s ban in federal court.

Sixth Circuit

The Sixth Circuit has heard argument on marriage equality appeals but has not yet ruled. Pundits believe this court to be split with one opponent of equality, one supporter, and one justice who did not indicate his inclination. Marriage is on stay in this circuit.

* In February, a federal judge ruled that Kentucky’s marriage ban is unconstitutional.
* A ruling in Ohio found that bans on recognition of out of state same-sex marriages is unconstitutional.
* In March, a federal judge ruled that Michigan’s marriage ban is unconstitutional.
* In Tennessee, a state judge ruled that Tennessee could engage in unequal treatment of its citizens. No federal judge has ruled.

Seventh Circuit

* Illinois has marriage equality through legislative action.
The Seventh Circuit has ruled that same-sex marriage bans are a violation of the US Constitution. That ruling did not receive a hearing before the high court and two states have marriage equality through today’s denial of certiorari
* Indiana
* Wisconsin

Eighth Circuit

In 2006, the Eighth Circuit ruled that Nebraska’s constitutional amendment prohibiting same-sex marriage did not violate the US Constitution. That ruling, which came before Windsor and was based primarily on the Baker case, was not appealed to the Supreme Court.

* Iowa has marriage equality through state court ruling.
* Minnesota has marriage equality through legislation (driven by popular vote).
* In May a federal judge ruled that Arkansas’ marriage ban is unconstitutional. That ruling has been appealed but not heard. It is on stay.
* Last Friday, a state judge ruled that Missouri’s marriage ban on recognition of out-of-state same-sex marriage is unconstitutional. There does not yet appear to be a stay and the case is in a bit of limbo. Two other federal cases are in process.
* Nebraska has no ruling before the Appeals court.
* In North Dakota a case has been filed but not yet heard.
* In South Dakota a case has been filed but not yet heard.

Ninth Circuit

Several states have marriage equality by means of judicial or legislative decision (or some combination thereof):

* California
* Hawaii
* Oregon
* Washington

* In 2012, prior to Windsor, a federal judge upheld Nevada’s constitutional amendment banning same-sex marriages (the state has everything-but-the-name Domestic Partnerships). However, after the Ninth Circuit found that anti-gay laws are subject to heighten scrutiny, the Governor and the Attorney General pulled all state support for the ban, leaving it to be argued by a right-wing fringe group. It is clear that the Ninth Circuit will rule favorably.

* Also before the court was Idaho, defending their ban, which had been found unconstitutional by a federal judge in May.

* Alaska has been sued, but the case has not yet been heard in federal court.
* Arizona has two cases working their way through state court.
* Montana has no constitutional ban on marriage equality. However, the legislative ban constitutional ban on same-sex marriage has been challenged by as (as of yet unheard) case filed in federal court.

Tenth Circuit

* New Mexico has marriage equality through state court determination.
The Tenth Circuit has ruled that same-sex marriage bans are a violation of the US Constitution. That ruling did not receive a hearing before the high court and two states have marriage equality through today’s denial of certiorari:
* Oklahoma
* Utah

* The Attorney General in Colorado has announce that due to today’s inaction, Colorado will begin issuing marriage licenses.
* A case is working it’s way through the courts in Kansas. However, it is but a formality before the ban is found unconstitutional.
* Wyoming does not have a constitutional ban on equality, but it has a legislative ban. Some efforts to change the law have been unsuccessful. However, it is but a formality before the ban is found unconstitutional.

Eleventh Circuit

* Alabama has been sued, but the case has not yet been heard in federal court.
* In August, a federal judge found Florida’s ban on equality to be in violation of the US Constitution. The case is stayed and appeal has not yet been heard.
* Georgia has a constitutional ban on equality and I do not believe that there is a federal case pending. a federal court case has been filed challenging that ban. It has not yet been heard.

Jeff

October 6th, 2014

PA has marriage as of May 20th 2014 with the Whitewood v. Wolf ruling.

Sandhorse

October 6th, 2014

Jeff is correct… and my husband and I have the license to prove it too.

Goodboypa

October 6th, 2014

Nice summary! Thanks.

Freedom to Marry filed a Georgia challenge back in April (2014):

http://www.freedomtomarry.org/states/entry/c/georgia

Timothy Kincaid

October 6th, 2014

Thanks Goodboypa. That one slipped my attention. It’s been updated.

Spunky

October 7th, 2014

A state judge in Louisiana recently struck down the state’s ban.

http://m.csmonitor.com/USA/Latest-News-Wires/2014/0922/Louisiana-judge-rules-state-marriage-ban-unconstitutional

sara

October 7th, 2014

Small correction — unfortunately, Montana does have a constitutional amendment banning same-sex marriage. It passed in 2004 (about a year before I moved there).

I believe you are correct that it is being challenged in court.

Timothy Kincaid

October 7th, 2014

thanks sara

occono

October 7th, 2014

Hmm, does the Eighth not count as a circuit split?

Nathaniel

October 8th, 2014

occono, if there was no appeal to SCOTUS, then SCOTUS can’t rule on it. Therefore, there is not legal quandary.

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