Married same-sex couples in seven more states – Colorado, Indiana, Nevada, Oklahoma, Utah, Virginia, and Wisconsin – will be eligible to receive the full trove of spousal benefits from the federal government, U.S. Attorney General Eric Holder announced on Friday, minutes before a federal judge in Arizona struck down that state’s same-sex marriage ban.
The Department of Justice’s move follows two major court actions – one from the nation’s highest, and the other from the San Francisco-based 9th Circuit Court of Appeals – that cleared the way for marriage equality’s eventual expansion to 35 states, plus the District of Columbia. Less than two weeks ago, that number was 19.It may take time, however, for some of those states to legalize marriage equality, as several elected officials have vowed to continue defending their bans. For the moment, federal recognition of same-sex nuptials appears to be limited to those states whose officials have given up the fight.
“We will not delay in fulfilling our responsibility to afford every eligible couple, whether same-sex or opposite-sex, the full rights and responsibilities to which they are entitled,” said Holder in a video message Friday. “With their long-awaited unions, we are slowly drawing closer to full equality for lesbian, gay, bisexual, and transgender Americans nationwide.”
Holder’s announcement is no surprise. Married same-sex couples have been entitled to federal benefits since last year’s landmark Defense of Marriage Act (DOMA) ruling, which struck down a portion of the law that defined marriage as an institution between one man and one woman for U.S. government purposes. In addition to clearing the way for federal recognition of same-sex nuptials, the DOMA decision opened the floodgates for an unprecedented wave of marriage equality triumphs in both state and federal court. Out of 81 cases pending in 32 states, gay and lesbian couples have prevailed 42 times and lost only twice. So far, no ban has survived in a federal appeals court.
Legal experts had widely predicted the U.S. Supreme Court would take up one of the seven marriage cases pending before it at the start of this year’s term. But the justices surprised everyone by declining to hear any of them last week. That move immediately legalized marriage equality in the five states from which the cases originated: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. It also doomed bans in six others that make up the 4th, 7th, and 10th circuits: Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. A day after the Supreme Court’s action, another federal appeals court — the 9th Circuit — struck down same-sex marriage bans in Idaho and Nevada, essentially making bans in three other states bound to that appellate ruling impossible to defend. Those states include Alaska, Arizona, and Montana.
Within the same hour as Holder’s announcement, U.S. District Judge John Sedwick, a President George W. Bush appointee, struck down Arizona’s same-sex marriage ban, bringing the total number of states where gay and lesbian couples can wed to 31.
“It is clear,” wrote Sedwick, “that an appeal to the Ninth Circuit would be futile. It is also clear – based on the Supreme Court’s denial of [appeals] filed in connection with several circuit court decisions which held that same-sex marriage must be recognized in Indiana, Oklahoma, Utah, Virginia, and Wisconsin – that the High Court will turn a deaf ear on any request for relief from the Ninth Circuit’s decision.”
Despite these gains, significant challenges remain for the LGBT equality movement. For example, gay and lesbian couples can now get legally married in more states than where they are legally protected from job discrimination. As advocates move forward, many plan on shifting their focus from the marriage equality fight to the expansion of legal employment, public accommodations, and bullying protections.
“The steady progress toward LGBT equality we’ve seen – and celebrated – is important and historic,” said Holder. “But there remain too many places in this country where men and women cannot visit their partners in the hospital, or be recognized as the rightful parents of their own adopted children; where people can be discriminated against just because they are gay.”
Holder noted that the Supreme Court may still decide to take up a marriage equality case and settle the issue once and for all. But until that happens, he said, “we will continue to extend federal benefits to same-sex couples to the fullest extent allowed by federal law.”