Same-Sex Marriage Goes From 19 States To 29 States In One Week

In the space of one week, we've gone from 19 states that recognize same-sex marriage to 29. Soon, it will be 35.


Actions in three separate states today in both the courts and by politicians in the wake of Monday’s Supreme Court decision to decline review of the pending same-sex marriage cases before it and Wednesday’s decision by the Ninth Circuit Court of Appeals have added three more states to those that recognize same-sex marriage.

First, officials in West Virginia announced that they would not fight efforts to have the ruling of the Fourth Circuit on same-sex marriage applied to West Virginia’s law:

CHARLESTON, W.Va. (AP) — West Virginia Attorney General Patrick Morrisey says his office will no longer fight a court challenge to West Virginia’s ban on same-sex marriages.

Morrisey issued a statement Thursday that his office “will respect” the recent U.S. Supreme Court declining to review a lower-court ruling in July striking down Virginia’s ban on same-sex marriages. But Morrisey says he still doesn’t agree with the high court’s stance.

U.S. District Judge Robert Chambers in Huntington had previously put West Virginia’s case on hold. On Tuesday, Chamber ordered the state and clerks in Kanawha and Cabell counties to respond to a motion by plaintiffs by Oct. 21.

In North Carolina, a Federal Judge struck down that state’s same-sex marriage ban based largely on the Fourth Circuit’s ruling:

WASHINGTON — A federal judge found that North Carolina’s ban on same-sex couples’ marriages, passed by voters in 2012, is unconstitutional.

The move follows the Supreme Court decision on Monday morning to deny the attempted appeal of the 4th Circuit Court of Appeals decision striking down Virginia’s similar ban.

Because North Carolina is one of the states covered by the 4th Circuit, the 4th Circuit’s Virginia ruling — Bostic v. Schaefer — is controlling in North Carolina.

In the ruling, U.S. District Court Judge Max O. Cogburn found that, under the Bosticruling, “the court determines that North Carolina’s laws prohibiting same-sex marriage are unconstitutional as a matter of law.”

Marriages licenses are expected to be issued to same-sex couples on Friday. For example, the Register of Deeds in Wake County, North Carolina is staying open until 9 p.m., according to Equality North Carolina.

In another pending marriage case in federal court in North Carolina, U.S. District Court Judge William Osteen signaled earlier Friday afternoon that he, too, planned to take similar action in a coming order, writing, “Bostic is binding precedent on this court and, for reasons which will be explained later in a separate opinion, controls the decision in this case.”

This action came after representatives for the state legislature attempted to intervene in the case in an effort to keep the state’s ban, which was the last ban on same-sex marriage passed in the United States to date and likely the last ever, in effect but they were unsuccessful in that effort. In no small part, that failure may be attributable to the fact that both the Republican Governor and Democratic Attorney General of North Carolina had said in the wake of Monday’s actions that there did not appear to be any further viable legal arguments for the state to make in defense of the ban.

Finally, late today the Supreme Court lifted the stay that had been placed on same-sex marriages in Idaho in the wake of the Ninth Circuit’s ruling:

WASHINGTON — The Supreme Court on Friday afternoon ended the temporary halt on same-sex couples’ marriages in Idaho.

In a two-sentence order from the court, it ended the hold on the Idaho marriage case that was issued by Justice Anthony Kennedy earlier this week.

On Tuesday, the 9th Circuit Court of Appeals had upheld a trial court ruling that Idaho’s ban is unconstitutional. Later Tuesday, it issued the mandate, which is the final step putting the ruling into effect.

On Wednesday morning, however, Idaho officials asked the Supreme Court — in a filing to Kennedy — to put the ruling on hold during any appeal the state might pursue.

Kennedy granted a temporary stay while the Supreme Court considered Idaho’s request and heard from the same-sex couple plaintiffs in the case. In the meantime, however, the 9th Circuit recalled its mandate — a move it is now likely to reverse given Friday’s order from the Supreme Court.

Nevada had already received relief from the stay yesterday, and marriages there are already going forward, as they are in Colorado, which was not a party to any of the lawsuits dealt with this week but which is covered by the ruling of the 10th Circuit Court of Appeals. So, just since Monday we have seen same-sex marriage become the law in ten states, Oklahoma, Utah, Colorado, Idaho, Nevada, West Virginia, Virginia, North Carolina, Indiana, and Wisconsin. Waiting in the wings are other states covered by the holdings in the Supreme Court and Ninth Circuit actions including Alaska, where a hearing was held today on that state’s law, Montana, Arizona, Kansas, Wyoming, and South Carolina. Politicians in some of these states, such as Wyoming and South Carolina, continue to say that they will fight to defend their laws, but the outcomes there are as inevitable as they are in the other cases. In the space of a week, though, we’ve gone from 19 states recognizing same-sex marriage to 29, in short order that number will increase to 35. As has been the case for several years now, this is an issue that is moving forward with remarkable speed.

The next steps forward outside of the states listed above are unclear, of course. There is a case dealing with the bans on same-sex marriage pending before the Sixth Circuit right now that could be handed down any day now. In that case, the initial observations of the oral arguments on August 6th led many to believe that the panel hearing the case would be likely to uphold the bans. However, that is by no means clear, and it’s also entirely unclear how the Judges on that panel will react to what the Supreme Court and the Ninth Circuit have done this week. As a general rule, Judges do not like to be overturned on appeal, so it’s entirely possible that the signals that have been sent from One First Street will resonate in Cincinnati and result in a ruling in line with the other Circuits. If the bans are upheld, of course, then we’re likely to see this issue back before the Justices with more than enough time left in the Calendar to hear the matter before the end of this term. In the Fifth Circuit, there will soon be a hearing on appeals involving the bans in Louisiana and Texas. This is also a court that some expect might be inclined to uphold the state laws, but that’s just speculation at this point. This leaves the 11th Circuit, which covers Florida and the Southeast, and the Eighth Circuit, which covers most of the Mountain West. Neither of these Circuits have cases before them at the moment, though, so it’s quite probable that it will be some time before they issue any rulings. If either one of them, or both, uphold a state-law ban then it would like not happen until sometime well into next year, which means that there would most not be enough time for the Supreme Court to hear the case before the end of this term next June. So, to some extent, what happens next depends on what happens in the Sixth and Fifth Circuits. In any case, though, the ultimate end of this issue in the courts seems quite apparent.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. anjin-san says:

    That’s a good week…

  2. Mikey says:

    I believe this is what’s commonly referred to as a “tipping point.”

  3. Tillman says:

    Tillis was scrambling along with his counterpart in the State Senate earlier today to come up with a reason for the courts to delay the ruling on gay marriage. All sorts of legal mumbo-jumbo about not having the proper amount of time to craft a compelling case.

    On the other hand, my neighbors of fifteen years finally tied the knot.

  4. michael reynolds says:

    Once again conservative cries of social breakdown have been proven utterly false. Just as their predictions about Obamacare have been shown to be utterly wrong.

    Is there ever accountability for the malicious scare-mongers on the Right? Do the prophets of doom ever admit they were wrong? Ever since the Civil Rights act it’s been decades of wrong on the conservative side. Wrong, wrong, wrong and more wrong, and never an admission of error, never an acceptance of responsibility.