Since DOMA Decision, 5 Federal Courts Sided With Marriage Equality — 0 Sided With Discrimination

BY IAN MILLHISER ON FEBRUARY 14, 2014 AT 10:21 AM

United States v. Windsor, the Supreme Court’s decision last June striking the unconstitutional Defense of Marriage Act (DOMA), is, in parts, a baffling opinion. In the lead up to this decision, several justices who voted to strike DOMA strongly hinted that they prefer an incremental approach to a sweeping decision extending marriage equality to all fifty states. The result is a decision that explicitly reserves the question of whether states can engage in marriage discrimination for another day, while simultaneously relying largely on an equality rationale that should apply equally to states and the federal government.

In their effort to produce an opinion that struck DOMA while ostensibly putting off the question of what should happen in the states, the Court produced an opinion in Windsor that includes just enough states’ rights language to leave anti-gay litigants with the impression that their cause is not completely doomed. As one federal judge in Michigan explained in an order explaining how both supporters and opponents of marriage equality would prefer to read Windsor, defenders of discrimination will “no doubt cite to the relevant paragraphs of (Windsor's) majority opinion espousing the state’s ‘historic and essential authority to define the marital relation.’”

Such anti-gay litigants probably shouldn’t get their hopes up, however. With Thursday night’s decision striking down marriage discrimination in Virginia, five federal courts have now ruled in favor of marriage equality at the state level. Zero have upheld discrimination.