The First “No” Since Windsor

The First "No" Since Windsor by Laraine Schwartz, Esq.Advocates for same sex marriage may be running into the first sign of resistance from local and state courts. The recent decision in Borman v. Piles-Borman, written by 9th Circuit Judge Russell Simmons, held that Tennessee does not have to recognize the marriage of two male Tennessee residents who had legally tied the knot in Iowa.

This decision seems to fly in the face of the dozens of other decisions which recently have been handed down all over the country. Since the Supreme Court issued its decision in United States v. Windsor last year, courts in many states have been giving same sex couples reason to celebrate. Windsor held that any federal ban on gay marriage violates the Equal Protection Clause of the U.S. Constitution. While the Court did not specifically address whether state laws banning gay marriage are permissible, courts in different parts of the country have been “reading the tea leaves,” and, as a result, 25 different courts have struck down state laws which banned gay marriage in the 14 months since Windsor was decided.

In addition to the surprising pushback in the Borman case, the 6th Circuit Court of Appeals in Cincinnati is currently considering 6 different cases from Michigan, Kentucky, Ohio and Tennessee. Due to the relatively conservative makeup of this court, there has been speculation that it may uphold state laws which ban gay marriage.  If it does, this would almost certainly be appealed, which would force the U.S. Supreme Court to finally make a decision as to whether individual states can lawfully ban same sex marriages or not.

In his decision in Borman, Judge Simmons ruled that Tennessee’s gay marriage ban is rationally related to important state interests, because procreation is the primary reason for marriage, and same-sex couples cannot procreate naturally. In addition to opening the door as to whether Tennessee could also ban marriage between opposite sex couples who are infertile or simply too old to have children together, Simmons ignored all recent legal precedents of the Supreme Court such as Lawrence v Texas, Romer v Evans and even the Windsor case. Perhaps he may have been reflecting his personal religious or moral feelings instead of the case law before him?

Larraine Schwartz, Lobbying for Immigration Reform

Laraine E. Schwartz, Esq.
Winograd and Schwartz Attorneys at Law, PC

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