In the aftermath of U.S. v. Windsor, a series of cases have largely overturned state bans on gay marriage as violating the equal protection rights under the 14th amendment. Most recently, on September 4, 2014, a unanimous three-judge panel on the Seventh Circuit affirmed the invalidation of Indiana’s and Wisconsin’s bans on same-sex marriage, finding the states had not provided reasonable basis for their “discriminatory policies.”
In defending their respective bans, the states asserted their interests in encouraging straight people to marry to reduce the number of “accidental births.” Indiana argued that straight people must be pressured to marry because they produce “unwanted children by the carload.” The court, however, disagreed, countering that many “abandoned children” adopted by gay couples would be better off financially and emotionally if their adoptive parents were married.
Absent plausible grounds for barring gay marriage, the court ruled that Indiana and Wisconsin could not overcome a presumption that the bans amount to a denial of equal protection. Both states will likely seek review of the decision by the Supreme Court. Virginia and Oklahoma state bans have also appealed rulings invalidating their respective state-bans on same-sex marriage.
Not all federal courts have followed the trend however, with a federal district judge in the Fifth Circuit opting to uphold Louisiana’s ban on same-sex marriage after finding the state interests behind the statute to be legitimate. Judge Feldman’s decision, however, has been widely criticized as applying inaccurate standards of law, as he is the only federal judge to uphold a marriage-equality ban since the Supreme Court’s Windsordecision.
The Ninth Circuit also heard oral arguments in three separate cases challenging the same-sex marriage bans in Idaho, Nevada and Hawaii. Texas’ ban on same-sex marriage is also being contested, with the Fifth Circuit considering whether to uphold a district court’s decision to block enforcement of the ban after two Texas couples claimed the state’s prohibition against same-sex marriage served no purpose but to deprive them of their constitutional rights.
Kelley Drye will continue to monitor the fast-changing legal landscape of same-sex marriage. In the meantime, employers, particularly those with multi-state operations, should consult with counsel when making policy decisions implicating the rights and benefits of employees in same-sex marriages.