Since the Supreme Court ruled the Defense of Marriage Act unconstitutional a month ago, gay marriage litigation is growing like weeds in a vacant lot. Some cases were pending when Windsor was decided, some have been filed since then, and at least two involve what will probably become the biggest single category: cases that arise in the context of death or divorce when courts have to decide who qualifies as a surviving spouse.
Farthest along – The cases most likely to reach the Supreme Court next are two brought by Lambda Legal that are pending in the Ninth Circuit. Sevcik v. Sandoval from Nevada and Jackson v. Abercrombie from Hawaii challenge the same-sex marriage bans of their respective states. Both district courts ruled against the plaintiffs last year, and the Ninth Circuit put the cases on hold until the Supreme Court marriage decisions.
In Sevcik the plaintiffs are four couples who were denied marriage licenses in Nevada, and four couples married in California and Canada who seek recognition for their marriages in Nevada. The plaintiffs argue that Nevada’s civil unions law, which grants most of the same rights to same-sex civil unions as marriage, demonstrates the irrationality of the legal separation in Nevada between civil unions and marriage. Similarly in Abercrombie, the plaintiffs include a couple that was denied a marriage license, even though Hawaii allows civil unions between same-sex couples.
In other words, these two states have marriage equivalent statutes that grant material benefits to gay couples, but withhold the term “marriage.” They are similar to the California situation after Prop 8 was adopted. Because the Supreme Court disposed of Prop 8 on standing grounds and also vacated the Ninth Circuit opinion in that case, there is much less significant precedent for these cases than there would have been had the Court reached the merits in Perry.
Hitching a Ride – Three cases that also pre-date the Windsor decision initially focused on other issues. An Oklahoma case filed in 2004 challenged both DoMA and the state’s ban; it was stayed pending resolution of the other DoMA cases. DeBoer v. Snyder (Michigan) and Fisher-Borne v. Smith (North Carolina) began with same-sex couples suing for adoption rights. However, the plaintiffs in DeBoer are also challenging Michigan’s same-sex marriage ban in the lawsuit, and the ACLU has recently requested leave to amend the complaint in Fisher-Borne to add a challenge to North Carolina’s same-sex marriage ban. All three of these cases are in federal district courts.
Newbies – Both the legal organizations and private plaintiffs are bringing new suits in several states. After an ACLU case was filed in Pennsylvania, the state attorney general declined to defend the law, leaving that task to the governor. In Virginia, a joint ACLU-Lambda class action challenge will join another Virginia case brought by a couple on their own last week. Similarly, couples in Kentucky and Arkansas have also filed challenges.
Incidents of Marriage – Since marriage itself is not a judicial proceeding, there typically is no need for a formal ruling about whether a particular marriage is valid. Exceptions usually arise in the context of death or divorce. There have already been two rulings based on Windsor about whether a gay partner should qualify as a surviving spouse. In an Ohio case, a federal judge ruled that the state had to recognize a Maryland marriage when registering a death certificate; the Ohio Attorney General will not appeal. In Pennsylvania, a judge found that the survivor of a couple married in Canada and residing in Illinois was entitled to benefits of a Pennsylvania employer’s life insurance plan, because such plans are regulated by federal law. Because Illinois treats foreign marriages as civil unions, with all the benefits of marriage, the judge found that the Canadian marriage was recognized under the law of the state of the decedent’s residence (Illinois). Confusing? There are going to be many, many more conflict of laws cases.
State Courts -Three state court systems also have pending marriage litigation. In Illinois and New Jersey, the challenges pre-date Windsor, and the plaintiffs have filed summary judgment motions. In New Mexico, mandamus petitions have been filed in the state supreme court seeking a clarification that the state recognizes same-sex marriages performed in other states. In a fourth state, Montana, the ACLU is seeking provision of all material benefits of marriage, though not the designation.