Litigation Round-Up: The freedom to marry in the courts in VA, WI, NV, UT and OK

In the six months since the U.S. Supreme Court struck down the so-called Defense of Marriage Act, dozens of same-sex couples in states across the country have joined together to file lawsuits seeking the freedom to marry and urging their state to find that anti-marriage laws and constitutional amendments limiting the freedom to marry violate the United States Constitution. Forty cases are currently active in 22 states where same-sex couples cannot marry - check out all of them HERE, and see update from this week below:


On February 4, Virginia case Bostic v. Rainey is scheduled for its first hearing in Norfolk, Virg. Attorneys from the American Foundation for Equal Rights are heading up the case on behalf of two same-sex couples.

It's been a big month for the freedom to marry in Virginia: In January, VA Attorney General Mark Herring said that he would not defend Virginia's constitutional amendment that denies marriage and any other form of family status to same-sex couples. Governor Terry McAuliffe is also supportive of the freedom to marry. Last week, a separate case, Harris v. McDonnell, led by the ACLU and Lambda Legal, was certified for class-action status, meaning that the case will officially represent all same-sex couples in the state of Virginia. 


On February 3, the American Civil Liberties Union and the ACLU of Wisconsin filed Wolf v. Walker, a lawsuit in federal court on behalf of four same-sex couples seeking the freedom to marry in Wisconsin. The lawsuit seeks to overturn a constitutional amendment passed in Wisconsin in 2006 limiting marriage to different-sex couples, as well as strike down a "marriage evasion law" that penalizes Wisconsin couples from marrying out of state. Since same-sex couples are not permitted to marry in the state of Wisconsin, this law leaves same-sex couples no option or way to legally marry and live in their home state.

In Wisconsin, same-sex couples can file for domestic partnership, which provides them limited protections - but none of the dignity or federal respect of marriage. 


Briefing is underway in Nevada, where a ruling by a lower court in Lambda Legal's case Sevcik v. Sandoval is being appealed to the 9th Circuit Court of Appeals. Equality Case Files is collecting all of the amici briefs in support of the case's plaintiffs HERE

A January 21 decision in the 9th Circuit Court of Appeals finding that gay people could not be excluded from juries because of their sexuality - that sexual orientation is a class protected by heightened scrutiny - could impact the appeal dramatically. Last week, Nevada Attorney General Catherine Cortez Masto referenced the decision in the case about gay jurors and explained that the arguments she made in her briefs about marriage "are likely no longer tenable." 

Now, marriage supporters in Nevada are anticipating the next move by the state of Nevada. Lambda Legal's National Legal Director Jon Davidson told reporters last week, "I think we are feeling pretty optimistic at the moment given the 9th Circuit’s recent ruling where it applies the heightened judicial scrutiny. That will be very helpful to us, which I think the attorney general recognizes."


On February 3, the plaintiffs in Kitchen v. Herbert, the case that resulted in the December 20 ruling from a federal judge striking down anti-marriage laws in Utah, filed their opening brief.

Briefing will continue until all are due on March 4.  The state's appeal of the ruling is currently being fast-tracked, with oral arguments in the case scheduled to be heard by a 3-judge panel from the 10th Circuit Court of Appeals on April 10.


On January 16, the state of Oklahoma filed an appeal of the January 14 ruling in Bishop v. United States, which found the marriage ban in Oklahoma unconstitutional - and shortly after, two plaintiffs, Phillips and Barton, filed an appeal to the 10th Circuit for their section of the lawsuit, which asked the court to declare that neither an Oklahoma amendment nor federal law can permit Oklahoma to refuse to recognize their California marriage. In the January 14 ruling, the judge ruled that Phillips and Barton did not have legal standing to sue Oklahoma on these grounds. 

The briefing in the appeals hearing has been expedited: Final briefings are due on April 7, and oral arguments have been scheduled for April 17. The case will be heard by a three-judge panel in the 10th Circuit Court of Appeals, the same panel that will hear arguments in the Utah case Kitchen v. Herbert. 

Read more about Marriage Litigation HERE