Same-sex marriage is picking up steam in the courts. A federal judge ordered Ohio on Monday to recognize gay marriages on death certificates, but used broad language that could be cited to mount a broader challenge to the law barring such unions.
It was the third judicial decision in the last week favoring same-sex marriage rights. In Utah, a federal judge struck down a gay marriage ban Friday and refused to suspend his decision Monday. A federal appellate court also rejected Utah's plea to put his ruling on hold.
And on Thursday, the New Mexico Supreme Court formally recognized same-sex marriage, which is now legal in 17 states and the District of Columbia.
The scenarios must have sounded all too familiar to U.S. Supreme Court Justice Antonin Scalia. In June, when the court issued a landmark decision ordering the federal government to recognize same-sex marriages performed in states where they were legal, Scalia warned of what could come next.
"How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," Scalia wrote in a scathing dissent in United States vs. Windsor, which struck down part of the federal Defense of Marriage Act but left state laws intact. "No one should be fooled; it is just a matter of listening and waiting for the other shoe" to drop.
Now, for opponents of same-sex marriage, the other shoe is dropping.
"We're on a roll!" said Jon Davidson, legal director of Lambda Legal, an advocacy group that has been handling cases against same-sex marriage bans across the country. "Three work days in a row, we've had victories," and all of them cite the Supreme Court's Defense of Marriage Act ruling.
In the most recent decision, U.S. District Judge Timothy S. Black ruled in Cincinnati that Ohio had to recognize a gay couple as spouses on one of the men's death certificate. Ohio bans same-sex marriage, so the pair had flown to Maryland while one of the men was terminally ill and wed on an airport tarmac.
Although Black's decision applied only to death certificates for couples married out of state, his ruling criticized Ohio's same-sex marriage ban and opened a door for other couples to challenge the law more broadly.
Alphonse Gerhardstein, a civil rights lawyer in Cincinnati who handled the case, said the Defense of Marriage Act ruling was central to his attack on Ohio's ban.
"I just took that same argument and went to Ohio and said, 'How can you now refuse to recognize marriages from other states if the federal government can't do it?'" Gerhardstein said. The Defense of Marriage Act ruling "is a huge engine behind this."
At least two federal judges, in their rulings on state bans, have cited Scalia's warning that the Supreme Court's ruling would ripple through the U.S.
"Now it is just as Justice Scalia predicted," Black wrote in his Ohio ruling. "The lower courts are applying the Supreme Court's decision, as they must, and the question is presented whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples. ... Under the Constitution of the United States, the answer is no."
A similar decision Friday in Utah resulted in the state's ban on same-sex marriage being thrown out. Gay and lesbian couples flocked to wed as Utah officials scrambled to challenge U.S. District Judge Robert J. Shelby's ruling, which quoted and embraced Scalia's warning.
"The court agrees with Justice Scalia's interpretation," Shelby, a President Obama appointee, wrote, perhaps ironically, given that Scalia had criticized the Supreme Court's ruling as an overreach. Shelby said worries about overriding Utah's constitution and Legislature were "insufficient to save a state-law prohibition that denies the plaintiffs their rights to due process under the law."
The New Mexico Supreme Court did not cite the Defense of Marriage Act ruling so heavily. But it did follow a similar argument, ruling that denying same-sex couples the right to marry violated the state's equal-protection laws.
And in September, a New Jersey Superior Court judge said the ruling gave the state's same-sex civil unions "new significance" now that federal agencies were granting benefits only to couples who were formally married. The judge struck down the state's ban on gay marriage, and Republican Gov. Chris Christie withdrew his appeal of the ruling to the state's Supreme Court.
David Cruz, professor of law at the USC Gould School of Law, said judges now seemed more likely to expand upon the Supreme Court's ruling in favor of same-sex marriage.
"Part of what we're seeing is that, culturally, the judiciary — both federal and state judges — are more receptive to the logical, principle-based arguments that same-sex couples have been seeking for the right to marry since the very beginning of the 1970s," Cruz said.
In doing so, judges have overridden legislators and voters who had approved the bans before national popular opinion began to tilt in favor of same-sex marriage.
"It is patently wrong and unjust that the people of Utah should lose their right to define marriage because of the ruling of a single Obama appointee to the federal bench," said Brian S. Brown, president of the National Organization for Marriage, which opposes same-sex marriage.
"It roils the body politic and does great damage to the people's confidence in the judicial system itself as a lone federal judge attempts to usurp the sovereignty of the state," Brown added in a statement, calling for the U.S. 10th Circuit Court of Appeals to halt same-sex marriages in Utah while the state appeals. The 10th Circuit has twice denied the state's emergency requests.
But the idea that a judge should not settle such a controversial question resonated with Gerhardstein, the Ohio lawyer.
"In the end, social change is best generated with public support," he said, which is why the Ohio lawsuit addressed only death certificates rather than the right to same-sex marriage.
"That would be wonderful if Ohio would take that opportunity to go ahead and repeal [the ban], because then you would have a stronger and more robust protection for the minority," he said.