Southern jurisprudence is at the forefront of protecting the rights of same-sex couples.

By Robert Miller, Lawyer  

On September 26, 1996, President Bill Clinton signed into law the Defense of Marriage Act (“DOMA”), wherein Section 3 defined the institution of marriage for federal purposes as between “one man and one woman” and allowed states not to recognize same-sex marriages performed that were entered in states that permitted same. Following the passage of DOMA, many states amended their constitutions to prohibit same-sex marriage. Despite these state prohibitions remaining in place today, national opinion has significantly shifted since 1996. For example, one Gallup poll found that in 1996 approximately 68% of Americans believed that same-sex marriage should not be recognized as valid.[1] By contrast, in 2011 that same Gallup poll found that 53% now approve of same-sex marriage. Hence, in just fifteen years, American popular opinion has shifted from vastly disfavoring same-sex marriage to a slight majority approving of it. And while it is true that support still lags in the south, approval ratings are up fourteen percent in the last decade (21% in 2003 to 35% in 2012).[2]

It was in this rapidly changing landscape that the United States Supreme Court heard the case of United States v. Windsor, 570 U.S. 12 (2013), which marks the beginning of the end of state and federal prohibitions on same-sex marriage. Surprisingly, in the wake of Windsor, four southern courts have held their bans on same-sex marriage unconstitutional. The inevitable question thus becomes: Why would four historically conservative southern courts all find state bans on same sex marriage unconstitutional?

In search of an answer, it is best to start at the beginning.

Windsor: The Beginning of the End

Edith Windsor and Thea Spyer were a same-sex couple from New York who married in Canada in 2007. Spyer passed away leaving her entire estate to Windsor, who attempted to claim the federal estate tax exemption for surviving spouses. Pursuant to Section 3 of DOMA, Windsor was barred from doing so by the Internal Revenue Service who found that the exemption did not apply. Windsor was required to pay $363,053 in estate taxes.

Windsor was successful in the lower courts where Section 3 of DOMA was held to be an unconstitutional violation of her equal protection rights. Following another win on appeal, the United States petitioned the United States Supreme Court and in a 5–4 decision, issued on June 26, 2013, the court held Section 3 of DOMA to be an unconstitutional violation of equal protection because the “avowed purpose and practical effect of the law was to impose…a separate status…upon all who enter into same-sex marriages….” In its holding, however, the Court made it clear that Windsor should not be applied to state specific prohibitions on same-sex marriage.

Four Southern Courts Hold Bans on Same-Sex Marriage Unconstitutional

In the ten months since Windsor there have been at least seven courts that have used the opinion to invalidate state bans on same-sex marriage. Despite the court’s statement that Windsor should not be used to strike down state bans, it should come as no surprise that it has been used in this manner. Justice Antonin Scalia even predicted this result in his Windsor dissent, stating, “[The majority holds that] DOMA is motivated by “‘bare…desire to harm couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws…” In Justice Scalia’s opinion, the issue of same-sex marriage should be left to the individual states to decide.

Unfortunately, Justice Scalia’s dissent fails to acknowledge that state laws often disenfranchise minorities. This is especially true with regard to southern jurisprudence where, for example, anti-miscegenation laws prohibiting interracial marriage were still on the books as recently as 1967. The Supreme Court has long been the final arbiter with regard to the constitutionality of state and federal laws. Likewise, Justice Scalia’s argument neglects the substantially similar justifications used by the United States (regarding DOMA) and the individual states (regarding their own bans). In short, the justifications have been exactly the same: (1) protect traditional marriage, (2) responsible procreation and (3) optimal child rearing. Each of these justifications were addressed and summarily dismissed in Windsor and therefore it should come as no surprise that Windsor’s language would be used to invalidate substantially similar state laws and justifications. 

What follows is a summary of the four southern opinions that used Windsor to invalidate same-sex bans in Oklahoma, Kentucky, Virginia and Texas.

Bishop v. United States  (Oklahoma)

Plaintiffs Mary Bishop and Sharon Baldwin challenged a 2004 voter approved amendment to the Oklahoma constitution which defined marriage as between one man and one woman following their denial of a marriage license. Bishop has the distinction of being the first southern court, post-Windsor, to invalidate a state prohibition of same-sex marriage.

In his well-articulated opinion, Judge Terence C. Kern, thoroughly explains why Oklahoma’s constitutional amendment violates the equal protection clause of the Fourteenth Amendment by precluding same-sex couples from receiving an Oklahoma marriage license. The Court explained that a “class-based equal-protection challenge…generally requires a two-step analysis…the Court asks ‘[1] whether the challenged state action intentionally discriminates between groups…[and, if so, 2] whether the state’s intentional decision to discriminate can be justified by reference to some upright government purpose.” In answering part one, the Court quotes verbatim an Oklahoma Senate press release and selected quotes from Oklahoma senators, which reference judicial efforts to block the redefining of marriage. The Court concluded that the “exclusion of the defined class was not hidden…it was consistently communicated to Oklahoma citizens as a justification.” Finding that the law intentionally discriminated against same-sex couples, the Court shifted its focus to determine whether the law was justified.

Prior to determining whether the law was justified, the court had to establish the appropriate level of scrutiny. The Court determined that the type of discrimination at play was “sexual-orientation discrimination,” which required only rational basis review (most deferential to the government), not gender-based discrimination, which would have required heightened scrutiny.  The court determined that rational basis review was required; however, the level of scrutiny was ultimately of little consequence because the state was unable to pass even basic rational basis muster. As in Windsor, the state argued four justifications: (1) promoting morality, (2) encouraging responsible procreation, (3) promoting optimal child rearing/ideal family and (4) protecting traditional marriage. The Court addressed each in turn, ultimately holding that all four justifications were impermissible and that the fourth was simply based on the “majority’s disapproval of the defined class.” In short, all of the justifications which were addressed and dismissed in Windsor, were similarly dismissed in Bishop.

Bourke v. Beshear (Kentucky)

In Bourke, four same sex couples were married outside the state and argued that Kentucky’s legal framework denied them certain rights and benefits that married opposite-sex couples enjoyed. The Court was first tasked with determining which analytical framework was correct and ultimately decided that the Fourteenth Amendment’s Equal Protection Clause provided the most appropriate analytical framework. Considering the case under an equal protection analysis required the Court to again determine what level of scrutiny to apply (e.g. rational basis, heightened or strict). To do so, it looked to Windsor for guidance. However, despite using what the Bourke referred to as “rational basis language,” the Windsor Court did not specifically address which level of scrutiny applied to equal protection cases involving same sex couples; however, the traditional standard of review with regard to same-sex couples has been rational basis.

In a well-articulated opinion that attempted to simultaneously explain the Court’s equal protection analysis and quell the inevitable concerns that many Kentuckians would have as a result of the court’s ruling, the Bourke court held that laws denying same-sex couples married outside the state with the same rights as heterosexual couples was an unconstitutional violation of equal protection because the primary effect was to identify a subset of state-sanctioned marriages and make them unequal. In doing so, the Court noted that it was cognizant of its citizen’s strong beliefs regarding “traditional marriage,” but also noted that “laws rooted in tradition…cannot alone justify their infringement on individual liberties.”

Bostic v. Rainey (Virginia)

The plaintiffs in Bostic were same sex partners who were unable to obtain a marriage license as a result of Article I, Section 15-A of the Virginia Constitution, which defined marriage as between “one man and one woman.” Bostic sought injunctive relief and a declaration that Section 15-A was an unconstitutional violation of equal protection provided by the Fourteenth Amendment.  Bostic was granted both requests. T

he Bostic opinion is unique in that after determining that (same-sex) marriage was a “fundamental right,” the court applied “strict scrutiny” review. This is a radical departure from the majority of post-Windsor cases (and indeed Windsor itself), which applied rational basis review or, at most, heightened scrutiny.  Applying strict scrutiny, the Court noted that Virginia’s prohibition must be justified by a “compelling state interest” and be “narrowly drawn to express only those interests.” As the reader can probably infer, the Windsor justifications (e.g. tradition, federalism, responsible procreation), which have not passed rational basis review, were summarily dismissed by the court when strict scrutiny was applied.

The Bostic opinion is also important as it eloquently explains the interplay between the judicial branch and changing popular opinion with regard to same-sex marriage.  Judge Arenda L. Wright Allen poignantly noted that “the protections created for us by the drafters of our constitution were designed to evolve and adapt to the progress of our citizenry…Tradition is revered in [Virginia]…However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.”  This observation is, perhaps, the quintessential example of the American judicial system reflecting the popular opinion of the people and the reason why state bans on same-sex marriage are falling in rapid succession.

Cleopatra de Leonv. Rick Perry (Texas)

The plaintiffs in Cleopatra de Leon were similarly situated to those found in the previous three cases in that they were both denied a marriage license and their lawful out-of-state marriage was not recognized in Texas.  However, Cleopatra de Leon is unique in that one plaintiff was the biological mother of a minor child and her partner was unable to formally adopt the child because they were not married.  As a result, the plaintiffs sought an injunction requiring the state to grant them and other same-sex couples a marriage license and recognize their valid out-of-state marriages.

The law at issue was Article I, Section 32 of the Texas Constitution which was amended in 2005 with overwhelming voter support. The amendment defined marriage as between one man and woman.  Additionally, Texas Family Code 2.001(b) prohibited any clerk of a Texas court from issuing a marriage license to same-sex couples.

Applying a rational basis review, the Court held that the Windsor justifications of child rearing, procreation, and tradition, were unfounded and that there was no rational basis for denying homosexual couples the right to marry or for failing to recognize their valid out-of-state marriage.  Cleopatra de Leon is perhaps the best example of a court applying the Windsor analysis to the debunked justifications. With regard to “childrearing,” as in Windsor, Cleopatra de Leon stated that “denying same-sex couples the right to marry does not further this interest and instead it stigmatizes and humiliates children being raised in same-sex relationships.”  With regard to “procreation,” Cleopatra de Leon again cited Windsor’s language almost verbatim, noting that procreation has never been a prerequisite for marriage and that if it were, infertile women, sterile men and the elderly would be denied that right. Finally, the court cited the now often familiar statement with regard to “protecting traditional marriage” stating, “Tradition alone cannot form a rational basis for a law.” The State of Texas has sought an immediate and expedited appeal of this ruling.


It is tempting to argue that the outcomes above are simply a product of political party lines and activist judges. However, this argument is flawed in that it fails to account for the significant shift in public opinion over the last decade with regard to same-sex marriage. Indeed, at the time when most of the United States’ same-sex marriage laws were implemented, national support of same-sex marriage hovered near 30% according to most polls. However, national public opinion has shifted and now has a 50% or higher approval rating. Hence, it is not surprising that American jurisprudence is also moving towards acceptance. What is surprising is that of the seven post-Windsor opinions, four have come from what has historically been the conservative southern United States, a region that Justice Scalia noted was a “familiar object of the Court’s scorn.”

Similar to jurisprudence regarding miscegenation laws and “separate but equal” facilities for African-Americans, which were struck down as public opinion began to shift, so too has jurisprudence with regard to same-sex marriage found its tipping point. This tipping point has only been made easier given the similar/disproven justifications being levied by the United States in Windsor and subsequent state cases. And while southern popular opinion still lags behind national opinion, proponents of same-sex marriage can take comfort knowing that southern jurisprudence, which is historically slow to address similar civil rights issues, is at the forefront of protecting the rights of same-sex couples, perhaps more so than ever before.



Robert Miller is an attorney at Kessler & Solomiany, LLC, located in Atlanta, Georgia. The firm’s practice is limited to family law matters such as divorce, child custody/support and modifications of previous court orders. Mr. Miller is extremely active in the Atlanta legal community and he is a member of the Young Lawyers Division, Child Protection & Advocacy and Family Law sections of the State Bar of Georgia.