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Who Will be the First?

May 22, 2014

Since December, when U.S. District Judge Robert Shelby declared that Utah’s refusal to allow same-sex couples to marry is unconstitutional, similar rulings by judges in other states across the country have been coming fast and furious.  This week alone, judges in Oregon and Pennsylvania struck down those states’ discriminatory marriage laws.  And in between, rulings overturning marriage bans have been handed down in states including Oklahoma, Virginia, Idaho, Texas, Michigan, Arkansas, and Illinois.

All of these decisions follow inexorably from the text and history of the Fourteenth Amendment and the Supreme Court’s precedents protecting the fundamental right of marriage and upholding the Constitution’s guarantee of equal protection for all, including its ruling last June in United States v. Windsor striking down the provision of the “Defense of Marriage Act” denying federal recognition to same-sex marriages recognized under state law.

The judges who have issued these post-Windsor rulings are a diverse group.  Some were appointed to the federal bench by Republican presidents, some by Democrats.  One is an elected state court judge in Arkansas.  The judges are young, old, male, female, black, white, gay and straight.  Demographically speaking, perhaps my personal favorite is Bernard A. Friedman of Michigan, a 70-year-old judge on senior status (a sort of semi-retirement for federal judges), put on the District Court by Ronald Reagan in 1988.   That all of these judges have come to the same conclusion about marriage equality underscores that a correct application of the Fourteenth Amendment is not a matter of ideology, but of faithful adherence to constitutional text, history and precedent.

That still doesn’t mean there isn’t some judge out there who will disagree.  In fact, each time a new ruling comes down, I wonder -- who (if any) will be the first judge, post-Windsor, to declare that the Constitution permits a state to continue to deny marriage equality to its gay and lesbian citizens?  There are enough judges scattered around the courts with erroneously cramped views of the Fourteenth Amendment that, sooner or later, there may well be an outlier opinion, despite the ever-growing body of case law to the contrary. 

In fact, given some of the questions asked during the recent oral arguments before the United States Courts of Appeals in the Utah, Oklahoma, and Virginia marriage equality cases, it’s possible that a pair of Pauls might be the first judges to leave the constitutional fold: the Tenth Circuit’s Paul Kelly, Jr. and the Fourth Circuit’s Paul Niemeyer.  It’s of course foolhardy to make predictions from oral argument, and of course these judges should recognize that the state laws they are considering run afoul of the Fourteenth Amendment.  But if either of them concludes otherwise, I hope he will only be writing a dissent from a majority opinion affirming the lower court’s ruling invalidating these laws.   

If it’s not Judge Kelly or Judge Niemeyer, it’s possible it will be someone else.  And that judge, whoever he or she is, would be on the wrong side of history.  More important, that judge would be on the wrong side of the Constitution.  And that’s a legacy no judge should want.

Cross-posted on Huffington Post.

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