Tag Archives: DOMA

Obergefell, Bourke, and “Fundamental Rights”: Gradually Bringing Same-Sex Marriage to Ohio and Kentucky

­Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

With recent narrow decisions in two federal lawsuits[1] challenging state constitutional bans on same-sex marriage, federal judges in Ohio and Kentucky have propelled the Sixth Circuit to the vanguard of interpreting the Supreme Court’s recent decision in United States v. Windsor.[2] The two district court judges not only utilized the constitutional momentum generated by Windsor to chip away at and severely curtail those amendments prohibiting same-sex marriage, but also essentially invited the Sixth Circuit to review their respective decisions and to reexamine its own jurisprudence on sexual orientation in light of Windsor. In one respect, the results in these lawsuits mirror many federal courts’ recent decisions in similar cases.[3] More importantly, however, these cases illustrate the struggle to wade through Windsor’s unclear standard of review, the intricate legal hoops through which district courts are jumping in post-Windsor lawsuits, and the building bottoms-up pressure for the Federal Courts of Appeals to assist in Windsor’s interpretation and application.

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The New Batson Challenge, Part II: Clarifying Windsor’s Standard of Review

­ [1] Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

In Batson v. Kentucky,[2] the Supreme Court held that peremptory challenges of members of a jury pool are subject to the guarantees of the Equal Protection Clause. Last year, in United States v. Windsor,[3] the Court struck down the federal Defense of Marriage Act (DOMA) as violative of the Fifth Amendment’s Equal Protection and Due Process Clauses. In January 2014, the Ninth Circuit applied these decisions in SmithKline Beecham v. Abbott Laboratories[4] to extend the protections of Batson to peremptory challenges of gay and lesbian jurors. In so doing, the court relied heavily on Windsor, essentially appropriating the Supreme Court’s reasoning in Windsor to declare that laws that classify persons based on sexual orientation are reviewed under a heightened scrutiny standard. This case is notable, first, because it represents a further extension of Batson’s growing protections, but more importantly, because it demonstrates how the Supreme Court’s decision in Windsor invited lower federal courts to declare a standard of review for laws that classify persons based on sexual orientation and initiated a legal battle to distill the “spirit of Windsor” into a manageable judicial standard.

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Where Due Process and Equal Protection Meet: Articulating the “Fundamental Right” of Marriage

Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

Since the Supreme Court’s decision in United States v. Windsor[1] last summer, two questions have been on many court watchers’ minds. First, after Windsor articulated a lengthy reasoning for its decision to strike down the Defense of Marriage Act, under what standard of review will courts evaluate laws that discriminate against same-sex couples? Second, can the standard for invalidating the federal Defense of Marriage Act (DOMA) under the Fifth Amendment be applied to States through the Fourteenth Amendment, or even be enunciated in a meaningful way? The Supreme Court’s current line of jurisprudence on constitutional problems that implicate same-sex issues necessitates that these two questions be considered and answered together,[2] as the United States District Court in Utah did in Kitchen v. Herbert.[3] Ultimately, the Kitchen case shows that the reasoning used in Windsor might not have been the soundest way to analyze the issues presented, and that there are alternative lines of reasoning that better support same-sex couples’ efforts to overturn state bans on gay marriage.

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