Oklahoma, Virginia, Kentucky….

February 13, 2014

Since my last post there have been several developments in the struggle for marriage equailty. First a federal district court in Oklahoma ruled against that state’s ban on same-sex marriage; this decision has been stayed pending appeal. Like the one in Utah, it seems to be based directly on the Equal Protection clause of the Federal Constitution, so that it cannot be upheld without affecting the whole country.

Then the new Attorney General of Virginia declared that he wouldn’t defend the state’s ban in the litigation underway there. This not only seems likely to add another state to the Equal Marriage column, it also indicates growing public acceptance of the concept, being the voice of an elected official rather than a politically unaccountable judge.

And now Kentucky. The case there didn’t directly address the state’s right to refuse to perform same-sex marriage, merely demanded recognition of such marriages legally performed elsewhere. The judge properly limited himself to this issue, but dealt with it in terms which strongly imply that if called upon, he would invalidate the ban altogether: no religious, traditional or personal moral belief can without some further showing trump the Equal Protection Clause, and no such further showing has been found to be valid. If this manages to stand, even without there being a broader ruling at a higher level, it at least invalidates that part of the federal DOMA which was left in place by SCOTUS, the part exempting the states from the usual comity requirement.

It looks more and more like endgame…

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