Same-sex marriage is picking up steam in the courts. A federal judge this week ordered Ohio 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. On Friday in Utah, a federal judge struck down a gay marriage ban, and on Tuesday a federal appeals court denied a request from the state to halt same-sex weddings until the appeals process plays out.
In New Mexico on Thursday, the Supreme Court formally recognized same-sex marriage, which is now legal in at least 17 states and the District of Columbia.
The scenarios may have sounded 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 workdays in a row, we've had victories," and all of them cite the Supreme Court's DOMA ruling.
In the most recent ruling, U.S. District Judge Timothy 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 blasted Ohio's same-sex marriage ban and opened a wide door for other couples to challenge the law more broadly.
Alphonse Gerhardstein, a private civil rights attorney in Cincinnati who handled the case, said the DOMA 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 DOMA ruling, he added, "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 United States.
"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 Shelby's ruling, which quoted and embraced Scalia's warning about the DOMA ruling's applicability to state laws.
"The court agrees with Justice Scalia's interpretation," Shelby, an Obama appointee, wrote, perhaps ironically, given that Scalia had blasted the Supreme Court's DOMA ruling as an overreach.
On Friday, the New Mexico Supreme Court did not cite the DOMA 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.
David Cruz, professor of law at the University of Southern California, said lower judges now seem more likely to expand upon the Supreme Court's ruling in favor of same-sex marriage.