One of America's fundamental guarantees of freedom, and one part of our system of "checks and balances," is an independent judiciary: judges who do their job of assuring constitutional and legal equality and justice for all, rather than just rubberstamping whatever politicians or the passions of the moment might dictate.
The growing consensus in courtrooms across the country is that there is simply no good reason to exclude same-sex couples from marriage. For several years, landmark court cases have challenged marriage discrimination at the state and federal level - and in 2013, the freedom to marry finally had its first day at the U.S. Supreme Court. The Court decided in Windsor v. United States that the federal government must equally honor and respect legal marriages between same-sex couples, extending to them the same protections and responsibilities that marriage triggers at the federal level for married different-sex couples. A number of other cases - including Hollingsworth v. Perry, Goodridge v. Department of Public Health, and Varnum v. Brien - have led to the freedom to marry for couples in California, Massachusetts, and Iowa, respectively.
Attacks on judges and the courts for doing their job are nothing new — going back to the denunciations of "activists judges" and billboards demanding the impeachment of the Supreme Court justices who ruled in favor of equality in cases such as Brown v. Board of Education. This disregard of the American judiciary was on full display during the 2010 Election, when anti-gay organizations and leaders flooded Iowa with money to unseat three Iowa Supreme Court justices for upholding the state’s constitutional principles.
Every American, gay or non-gay, is entitled to their day in court. Numerous organizations across the country are representing same-sex couples and their families in order to secure marriage to protect all families.
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Today, Kentucky Attorney General Jack Conway announced that he would not appeal a federal judge's Feb. 12 opinion ordering the state to respect the marriages of same-sex couples legally performed in other states.
Today, U.S. District Court Judge John Heyburn finalized his February 12 decision in Bourke v. Beshear. Effective immediately, legally married same-sex couples are recognized as such by the state of Kentucky.
Today, February 26, 2014, U.S. District Judge Orlando Garcia ruled that laws in Texas prohibiting same-sex couples from marrying are unconstitutional. The judge also issued a stay on the ruling pending appeal.
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Momentum for the freedom to marry continues to build. And it’s clear from the past few weeks the path ahead is dynamic and full of flashpoints, including in some of the more conservative parts of the country. This memo looks at what the recent Ohio, Oklahoma, and Utah court victories—and others potentially soon to come—mean in the context of our overall strategy to win the freedom to marry nationwide.
Tobias Barrington Wolff, Professor of Law at the University of Pennsylvania Law School, makes the case for marriage on the Hoover Institution's "Uncommon Knowledge" program.
An article adapted from Harvard Professor Nancy F. Cott’s expert report submitted in the case of Perry v. Schwarzenegger in the U.S. District Court for the Northern District of California.