Federal district judge Orlando Garcia recently issued a decision striking down Texas’ state constitutional ban on same-sex marriage. The opinion is available here. The ruling follows similar recent decisions by federal district courts in Utah and Virginia, and by the Supreme Court of New Mexico. It is significant that every court to have addressed this issue since the Supreme Court’s decision in United States v. Windsor has ruled the same way. This seems to validate my prediction that Windsor would provide a boost for efforts to invalidate gay marriage bans, though obviously the issue will not be definitively resolved until it returns to the Supreme Court.
The fact that so many state gay marriage laws have been invalidated since Windsor increases the likelihood that this issue will return to the federal Supreme Court sooner rather than later. It could be that some of these lower court rulings will be reversed by appellate courts. Even so, the pro-gay marriage forces clearly have momentum, and it is likely that at least some federal appellate courts will uphold lower court rulings striking down gay marriage bans. If so, that would put further pressure on the Supreme Court to address the issue that it ducked when it dismissed Hollingsworth v. Perry on standing grounds last year.
As for the substance of today’s ruling, I am not persuaded by Judge Garcia’s argument that a law banning gay marriage fails even minimal rational basis scrutiny. For reasons set out by Eugene Volokh here, I think these sorts of laws can pass this extremely low level of scrutiny. In my view, laws banning same-sex marriage are nonetheless unconstitutional because they qualify as sex discrimination, and therefore must face heightened intermediate scrutiny. The recent federal district court ruling striking down Utah’s ban on same-sex marriage concluded that the law does indeed discriminate on the basis of sex, though it also invalidated it on other grounds.
Ultimately, I think we are moving in the direction of a Supreme Court decision striking down laws banning gay marriage as unconstitutional. Judicial, elite, and public opinion are all moving in that direction. This is a tide of history that anti-gay marriage forces probably won’t be able to reverse. It is much more difficult to predict when exactly such a ruling will happen and what will be the rationale for it. At a Chicago-Kent College of Law forum in October, I said it would likely happen within ten to twenty years. But I now think it is equally likely that events will move a lot faster than that. We will have to see.