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Are state gay-marriage bans in jeopardy? Not so fast, experts say

Though a federal judge struck down Utah’s same-sex marriage ban and another chipped away at a similar law in Ohio in the last week, experts warned that about 30 similar state statutes weren’t necessarily under threat despite mounting legal challenges.
Though a federal judge struck down Utah’s same-sex marriage ban and another chipped away at a similar law in Ohio in the last week, experts warned that about 30 similar state statutes weren’t necessarily under threat despite mounting legal challenges.

A historic Supreme Court decision in June that struck down part of the Defense of Marriage Act (DOMA), a federal law denying recognition of gay marriage, has provided ample legal ammunition for supporters of the right of gays and lesbians to wed. They’ve filed 35 lawsuits in 19 states targeting state-level DOMAs, with a majority coming after the high justices ruled on the federal law, advocates said.

Those challenges are winding through lower courts in states like Texas, Virginia and Pennsylvania, where judges are reviewing the cases with the high court's decision in the DOMA case, United States v. Windsor, on hand. One of the challenges is expected to make it to the Supreme Court, experts said.

“I wouldn’t say [the Windsor ruling] is the death knell for marriage exclusion through the rest of the states, but I think it does initiate the next round of marriage equality victories,” said Bill Eskridge, a professor at Yale Law School and a constitutional law expert who has authored many works on legal issues facing same-sex couples.
“My prediction is that there will be a very fair number of judges who will be persuaded that marriage equality should prevail,” he added.

Gay marriage has been fought over at the ballot box in almost every state, debated in state legislatures, and become the subject of several court battles for some 20 years. The federal DOMA case was a major breakthrough for the same-sex marriage movement, and reinvigorated challenges to the state bans, many of which are constitutional amendments and can only be overturned by popular vote or a lawsuit.

Court cases lodged several years ago against a few state DOMAs failed, though the Ohio and Utah decisions may be followed by others, said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & AIDS Project, which is involved in four of the lawsuits.

“I think people see the promise in the Windsor decision and don’t want to wait anymore,” Esseks said Monday of the challenges.

The DOMA majority opinion is cited in many of the recent lawsuits. That’s no surprise, said Michael Klarman, a Harvard Law School professor, who noted the decision seemed to invite challenges to the state bans. But there are other factors, too, and a growing body of litigation to draw from.

“You’re going to see a lot of judges, state and federal, ruling that bans on same-sex marriage are unconstitutional based partly on what the Court said in Windsor, partly on the powerful trend in favor of same-sex marriage in the states over the past year or two, and partly on shifting public opinion within particular states,” Klarman, author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage,” wrote in an email to NBC News.

But not all judges will rule in favor of gay marriage. Some could easily read the DOMA decision as leaving marriage policy up to the states, as opponents of gay marriage have argued since the high court ruling. Much depends on the judge and their background, the professors said.
“The thing that I would not do is confidently predict that now all of these ‘mini’ DOMAs are going to be declared unconstitutional. That would be a mistake,” said Andrew M. Koppelman, a Northwestern University School of Law professor and author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines.”

“There is wiggle room here for judges to do what comports with their sense of what’s right,” said Koppelman, noting that the law in this area was “radically in flux.”

Judge Timothy S. Black of the U.S. District Court of the Southern District of Ohio did not hold back on his view of the impact of the Windsor decision in a ruling on Monday. He determined that the state, which has a DOMA law, must acknowledge same-sex marriages on death certificates after a legal challenge was brought by a gay couple in which one of the men was dying (he passed away in October).

Black, nominated to his post by President Obama, wrote that the determination “flows” from the Windsor decision.

“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 … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004),” he said, referring to the year when many state DOMAs were passed.

“Under the Constitution of the United States, the answer is no.”

Though at least 32 state DOMAs remain on the books (excluding Utah, where another federal court has said it would expedite the state's appeal of the lower court judge’s decision), gay marriage supporters see 2013 as a watershed year: If the Utah ruling stands, the number of states that allow gays and lesbians to wed will be 18, up from nine states, plus the District of Columbia in January. Popular support has grown for same-sex marriage, too, with 54 percent of Americans supporting it in a July 2013 Gallup poll.

But opponents haven’t given up their fight. Brian Brown, president of the National Organization for Marriage, said they’re vowing to push back against what they call “activist” judges, arguing marriage should be decided by the people although they are also pursuing a federal law to define marriage.

In the meantime, Brown said Section 2 of the federal DOMA law, which is still on the books, allows states to determine marriage policy.
“The fight over marriage is far from over,” he said.
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