Same-Sex Marriage Now Legal in a Majority of States

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The landmark case of U.S. v. Windsor, 133 S.Ct. 2675 (2013), found § 3 of the federal Defense of Marriage Act (“DOMA”) unconstitutional and opened the door to federal benefits for same-sex couples married in marriage states.   However, Windsor did not specifically address state same-sex marriage bans remaining in many states, such as the ban in Colorado’s state constitution defining marriage as “[o]nly a union of one man and one woman.”  COLO. CONST. art. II, § 31.  Following this decision, many hoped to see further guidance from the United States Supreme Court during this next term.  That day has now come.

On October 6, 2014, the United States Supreme Court denied review of all pending petitions challenging decisions from the Seventh, Fourth, and Tenth Circuit Courts of Appeals holding as unconstitutional state bans on same-sex marriage.  The Supreme Court’s announcement means that the decisions striking down bans on same-sex marriage stand in five states (Indiana, Oklahoma, Utah, Virginia and Wisconsin).  The announcement also means that same-sex couples in six more states within these same judicial circuits (Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming) will soon be able to marry.

On Tuesday, the Ninth Circuit struck down marriage bans for same-sex couples in Nevada and Idaho.

Why Did the Supreme Court Deny Review?

Although there are many other factors, the Supreme Court often decides to hear cases where there is a “circuit split,” i.e. where circuit courts have issued contradictory decisions and the law is therefore inconsistent across the country.  At this time, four circuit courts have all reached the same conclusion.

Will the Supreme Court address Same-Sex Marriage in the Future?

As with most major historically significant social issues, it is likely the Supreme Court will address this again in the future.  Appeals are currently pending before the Fifth Circuit, Sixth Circuit and Eleventh Circuit Courts of Appeals.  If any of these circuit courts rule differently and uphold state same-sex marriage bans, the Supreme Court will almost certainly act to resolve the split.

What Does this Mean for Colorado Families?

Colorado is part of the Tenth Circuit.  On June 25, 2014, the Tenth Circuit Court of Appeals in Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) struck down as unconstitutional Utah’s same-sex marriage ban.  The Tenth Circuit had stayed its decision as to Colorado pending appeal by the Colorado Attorney General to the Supreme Court.  However, as of Monday’s Supreme Court announcement, this decision stands and applies to invalidate as unconstitutional Colorado’s same-sex marriage ban.  On October 6, 2014, Colorado Attorney General John Suthers announced that Colorado would abide by the Supreme Court’s determination and acted promptly to lift the stay. 

On October 7, 2014, Suthers announced: “Beginning today, Colorado’s 64 county clerks are legally required to issue licenses to same-sex couples who request them. In addition, the Colorado Department of Public Health and Environment is required to register such marriages in the records of the State of Colorado” (emphasis added).  Press Release, Colorado Department of Law, Colorado Attorney General Tells County Clerks to Begin Issuing Same-Sex Marriage Licenses (October 7, 2014) (

What Does the Court’s Decision Mean on a National Level?

A map of the territory covered by the federal circuit courts of appeals illustrates the impact of the Supreme Court’s announcement and the Ninth Circuit Opinion.  As of October 7, 2014, same-sex marriage is (or will soon become) legal in thirty-four states. 

Call our Denver estate planning and family law attorneys at (303) 839-1204 if you would like to discuss how these changes impact your family or estate planning goals.

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