The Dramatic Chnages Brought by United States v. Windsor

A piece in Slate looks at the legal developments in LGBT equality since the United States Supreme Court handed down its historic ruling in United States v. Windsor.  While hate merchants such as Victoria Cobb and Brian Brown would depict individual judges and Attorney General Mark Herring as acting in a lawless manner, the truth is that it is the Christofascists who now seek to overthrow the rule of law.  They are the ones who would subvert the U.S. Constitution and the civil rights of others solely to impose their beliefs on all. They are the ones outside the mainstream. Here are some highlights from the Slate piece:

Last night, only days after hearing oral arguments in the case, a Virginia federal judge struck down the state ban on same-sex marriage, writing unequivocally that “[t]radition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.” The judge opened her opinion with the quote, above, from Mildred Loving, the plaintiff in the 1967 challenge to Virginia’s ban on interracial marriage. She thus joined a unanimous and ever-expanding collection of federal judges who have chosen to answer the question left up in the air by the Supreme Court last Spring: Did the Windsor decision—striking down the federal Defense of Marriage Act—pretty much strike down gay-marriage bans as well?

This hasn’t all been about marriage. Twelve decisions have addressed a substantive aspect of marriage equality since Windsor, and equality has won in all 12—with the Virginia decision now joining decisions from Kentucky, New Mexico, Oklahoma, Utah, and West Virginia, and two decisions each in Illinois, New Jersey, and Ohio. But six other cases since Windsor have addressed different aspects of discrimination based on sexual orientation, such as discrimination on juries and employment benefits, and the side of equality has won in all six of those cases as well.

The tally is even starker when you look at the number of judges who have considered the issue.  Since Windsor, in these 18 decisions, 32 different judges have considered whether Windsor is merely about the relationship between the state and federal governments or whether it is about equality. And all 32 of them have found for equality. In other words, 32 accomplished, intelligent lawyers, appointed by Democrats and Republicans, whose job it is to read precedent, have ruled for equality. Not a single one has disagreed.

One other phenomenon has occurred post Windsor that bears mentioning here. In Virginia and Pennsylvania, state attorneys general tasked with defending their state’s same-sex marriage bans have also read Windsor to mean that the ban is unconstitutional. In New Jersey, Gov. Chris Christie abandoned the state’s appeal of a decision striking down the New Jersey marriage ban.  And now this week, Nevada’s attorney general, a Democrat, and its Republican governor, announced that they too, could not defend the state’s gay-marriage ban anymore. Why? Windsor. As the Nevada officials explained to the 9^th Circuit, the Windsor decision “signifies that discrimination against same-sex couples is unconstitutional,” and thus the arguments that the state had made previously in support of its ban “cannot withstand legal scrutiny.” That means that not just courts, but also, increasingly, high state officials read the Windsor decision just the way Justice Scalia does: to prohibit inequality in marriage. As we witnessed this month in Virginia, the historic refusal to defend a same-sex marriage ban, followed by the judicial recognition that such a ban is unconstitutional, can unfold over a matter of mere weeks.

The power of the Christofascists is slowly being broken and all Americans will benefit.  Let's hope the trend continues or even accelerates.