The Increasing Role of the Judiciary in Deciding the Issue of Same-Sex Marriage

There has been a plethora of activity in the past few weeks regarding state bans of same-sex marriage. Most notably, Federal Judges in the United States District Courts for both the District of Utah and the Northern District of Oklahoma have have struck down their respective states’ ban on same-sex marriages, inspiring hope in those fighting for marriage equality.1 While more and more state legislatures are willingly enacting legislation supporting same-sex marriages—most recently, Illinois and Hawaii—the debate over whether or not same-sex couples should be allowed to marry is increasingly being fought at the courts rather than the ballots. This shift from policy proposals to litigation is unsurprising as the more liberal states have already passed marriage equality laws while the more conservative states, who are much less likely to willingly pursue same-sex marriage rights, remain. This article will examine the evolving course of the same-sex marriage movement, its progress in both State and Federal courts, and its ultimate trajectory to the highest court in the land: the Supreme Court.

* Note: For those of you opposed to the institution of same-sex marriage, please understand that the analysis provided here is a legal one. I also urge you to read Justice Kennedy’s majority opinion in Windsor (Online at, Part III, page 17 – 30) and Judge Shelby’s decision in Kitchen (Online at, starting at page 7) to understand the legal and constitutional reasonings used to justify same-sex marriage, as opposed to moral or ethical ones which are irrelevant in this context.

I. The Decision in Windsor

In its 2012 term, the Supreme Court heard the case United States v Windsor, a high profile case concerning same-sex couples’ rights. However, there are many misconceptions about what this case actually involved and how the decision affects the debate on same-sex marriage today. While it did not comment on the constitutionality of the institution of same-sex marriage, it did set precedents on the equal protection rights of same-sex couples under the constitution which, as we will see, judges, such as the one in the Utah case, can use to support their decisions supporting the constitutionality of same-sex marriage, or, in the even more recent case in the 9th Circuit, establish precedent classifying sexual orientation as a classification subject to heightened scrutiny. (For a quick overview of what scrutiny means in the context of the law, click here.)

In Windsor, the surviving spouse of a same-sex couple, Edith Windsor, sued the federal government to allow her to claim the federal estate tax exemption for surviving spouses. When her spouse, Thea Spyer, died, she left her entire estate to Windsor. The State of New York recognized the marriage of these two women—who wed in Ontario, Canada in 2007—thus making them a lawfully married couple. However, at the time, a federal law, the Defense of Marriage Act (DOMA),2 barred recognition to same-sex couples, even those recognized in their own states. Thus, Windsor could not claim to be a surviving spouse under federal tax law and, therefore, faced a whopping $363,053 estate tax for the estate left to her—a tax that the surviving member of a heterosexual relationship would not have to incur. The Supreme Court eventually ruled in favor of Windsor, with Justice Kennedy—known for his history of supporting gay rights such as in his decision in the landmark Lawrence v Texas—writing an opinion that made several references to the equal protection rights and “dignity” that all couples, including gay ones, are afforded by the Fourteenth and Fifteenth Amendments.3 The Court concluded that DOMA violated the Fifth Amendment because it “place[d] same-sex couples in an unstable position of being in a second-tier marriage,” a differentiation that “deman[ed] the couple, whose moral and sexual choices the Constitution protects[.]”4 The Court also stated that because DOMA deviates from the long-standing tradition of States, rather than the federal government, determining what is and what is not a marriage, it is guitly of singling out a specific class of citizens and “operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages” with “strong evidence of … having the purpose and effect of disapproval of that class.”5

So, while the Court’s ruling in this case did strike down the federal Defense of Marriage Act, it did not, and, in fact, refused to hear a case that could have decided whether or not statewide bans of same-sex marriage are constitutional. What the Court did do, however, was decide that the federal government could not intrude upon states’ powers of governing marriages which, in their home states, are for all intents and purposes equally valid under the law, and that, by doing so, the government purposefully and unconstitutionally demeaned those couples.

II. Federal Courts

While the Supreme Court narrowly declined to decide a case that would have ended the debate over same-sex marriage for good,6 the lower federal courts have been busy hearing cases of their own using the little guidance given to them by the Supreme Court in Windsor. What makes this particularly interesting is that in Windsor, the Court did not choose to resolve a particularly glaring conflict in their opinion. The Court ruled both in favor of states rights to govern marriages and the right of same-sex couples to have the same dignity as opposite-sex couples under the Fifth Amendment, two opposing values. This leaves the lower courts with the responsibility of deciding which of these values will take precedent in the cases they hear. In particular, there have been two very important cases recently that have demonstrated what the impact of the Supreme Court’s decision in Windsor and the future of the constitutional battle over same-sex marriage could hold.

In the most widely-publicized case, Kitchen v Herbert in the Federal District Court of Utah, a Federal Judge, Robert J. Shelby, overturned the state’s constitutional ban on gay marriage.7 In this case, the court found that the value of preserving the dignity of same-sex couples was more important than the state’s right to govern marriage. The court reaches this conclusion by listing numerous Supreme Court cases—most notably Loving v Virginia which overturned a state law banning interracial marriages—which all stated that marriage was a universal human right that the government, even states, cannot intervene in.8 Judge Shelby went further to say that the Utah ban violated the equal protection rights of same-sex couples and applied heightened scrutiny to their sexual status.9 A similar decision was reached in a federal court in Oklahoma in which the court called the state’s ban “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit” based on “moral disapproval” with no other state interest being forwarded.10

The other important federal case was a Ninth Circuit Court of Appeals case, Smithkline Beecham Corporation v Abbott Laboratories, which used the Supreme Court’s decision in Windsor to justify subjecting sexual orientation to heightened scrutiny. In this case, a juror was sent away because he was gay for fear of his sexual orientation influencing the outcome of the trial. While the lawyers who sent him away may have believed that their reasoning for discriminating against the juror were well-founded, the Appeals Court found that sexual orientation should be subject to a higher level of scrutiny, meaning that any discrimination against someone based on their sexual orientation must be justified with an air-tight argument. Therefore, any time an action by the government, at any level, discriminates (adversely or otherwise) based on sexual orientation, it will now have to prove much more compellingly its purpose for doing so. Specifically, it must prove that there is a compelling government interest in doing so (such as public safety), that the act is narrowly tailored (meaning the government is not discriminating broadly based on some characteristic of a person such as race or, in this case, sexual orientation), and that the government is using the least restrictive means possible in achieving this interest. The court reasoned that the Supreme Court’s decision in Windsor “established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.”11 This decision by the court is a major step in elevating the need to protect homosexuals from government discrimination, and while this case had to do with a juror being sent away for being gay, this basis of strict scrutiny can easily be applied by the court to laws that ban same-sex marriages.

III. State Courts and Executives

It’s not only the federal courts that are striking down laws banning same-sex marriage. State courts are similarly ruling their state’s bans unconstitutional under their state constitutions. In September 2013, the New Jersey State Superior Court was the first court to base their decision to strike down the state’s refusal to legalize same-sex marriage on the Supreme Court’s decision in Windsor for similar reasons as the cases already mentioned. While litigation is undoubtedly the most common tactic used by those fighting to legalize same-sex marriage, some politicians in the Executive branches of various levels of government have seen the writing on the wall and are moving to stop enforcement of their anti-same-sex marriage laws. Recently, in Virginia, which elected a Democratic governor in the last election, the Attorney General has come out in opposition of his state’s ban on gay marriage and has stated that he refuses to defend the law, asking the federal court to invalidate it. So, even at the state level, most actions taken on behalf of the movement to legalize same-sex marriage are either judicial or administrative.

IV. Does the public have no control? Where do we go from here?

Why are unelected judges deciding such sensitive social issues? Why, for instance, can a judge in Utah rule that the state, a particularly socially conservative one at that, can’t choose not to recognize gay marriage? Or why can’t voters in California do the same through a popular vote? Judge Shelby from the Utah Federal Court summed it the best, stating,

The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights “may not be submitted to vote; they depend on the outcome of no elections.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).12

When it comes to the issue of same-sex marriage, it is almost certain the remainder of the fight over its legalization will happen in courtrooms. Even so, the majority of states have already firmly staked their claims. “Since 2003, every other state has either legalized same-sex marriage or, like Utah, passed a constitutional amendment or other legislation to prohibit same-sex unions”.13 While the more liberal states have made sure to legalize same-sex marriage and will need no litigation to compel them to accept the inevitble, the conservative ones will need to be dragged kicking and screaming. While the future of same-sex marriage isn’t certain, the Supreme Court will almost undoubtedly have the final say within the next two terms and, based on their decision in Windsor, the many similar lower court interpretations of Windsor, and the vast public mandate urging the courts to rule in favor of legalization, there is little left to the imagination as to what the future will look like.


You’ve read enough. I’ve written enough. Let’s just stop here.

  1. Erik Eckholm, Federal Judge Rules That Same-Sex Marriage Is Legal in Utah, NY Times (NY Times Dec 20, 2013), online at (visited Jan 18, 2014); Erik Eckholm, Oklahoma’s Ban on Gay Marriage Is Unconstitutional, Judge Rules, NY Times (NY Times Jan 14, 2014), online at (visited Jan 18, 2014). []
  2. 28 USC §1783C. []
  3. “Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense importance.” United States v Windsor, 133 S.Ct. at 2697 (2013) (emphasis added). []
  4. Id at 2694. []
  5. Id; Id at 2698. []
  6. Hollingsworth v Perry, 133 S.Ct. 2652 (2013). []
  7. Erik Eckholm, Federal Judge Rules That Same-Sex Marriage Is Legal in Utah, NY Times (NY Times Dec 20, 2013), online at (visited Jan 18, 2014). []
  8. Kitchen v Herbert, Case No 2:13-cv-217, *20 (D Utah Dec 20, 2013) (“Utah Decision”). []
  9. Utah Decision at 31, 34. []
  10. Bishop v United States, Case No 04-cv-848-tck-tlw, *65 (ND Okla Jan 14, 2014) (“Oklahoma Decision”); Erik Eckholm, Oklahoma’s Ban on Gay Marriage Is Unconstitutional, Judge Rules, NY Times (NY Times Jan 14, 2014), online at (visited Jan 18, 2014). []
  11. Smithkline Beecham Corporation v Abbott Laboratories, Case No 11-17357, No 11-17373, *? (9th Cir Jan 21, 2014). []
  12. Utah Decision at *17. []
  13. Utah Decision at *9. []

Why the DC Circuit’s Decision Doesn’t Kill Net Neutrality

The Internet has been abuzz this week over the recent US Court of Appeals decision to strike down the FCC’s Net Neutrality Rules over Internet providers.1 With this news, many online blogs and news sites have taken to sensationalism, proclaiming that “Net Neutrality is [d]ead,” and that the court’s decision could “kill the Internet.”2 However, this is far from the end of the Internet. In reality, net neutrality supporters don’t have very much to worry about as long as the FCC can maneuver past the political pressure from ISP lobbyists and once and for all redesignate Internet providers as “common carriers” rather than their current designation as “information services.” While the decision in this case is incredibly complicated in its reasoning—by virtue of the fact that it deals with a complicated issue—this short article will try to clear up some confusion about this issue by explaining what powers the FCC has to regulate telecommunication services and the court’s reasoning as to why those powers cannot apply to Internet Service Providers by the FCC’s own rules.

I. Net Neutrality

For the uninitiated, Net Neutrality refers to the principle of regulating Internet Service Providers to ensure that sites and services on the web are treated equally and no one service is given preferential treatment—by being given higher speeds or some other advantage over other websites. The principle is meant to ensure that corporations with much more money to pay ISPs for higher speeds, or services the ISPs themselves have a vested interest in succeeding, can’t create products or services that smaller, poorer companies can’t compete with. For instance, a cable company such as Time Warner, which sells broadband internet, television, and phone services may have a vested interest in slowing down the speeds of sites like Netflix or Hulu as they are direct competitors for the ISP’s own television services. In another case, the ISP could charge websites to carry their traffic, leading to Internet plans that come in “package” deals much like cable, where a customer would have to pick which websites they want to be able to visit while being excluded from the rest. Both of these situations taint the free-market nature of the Internet wherein any person can start a website which, if popular enough, can become immensely successful and amass large profits. However, if ISPs are given the authority to determine the winners and losers in this market by manipulating the already scarce resource of bandwidth based on their own interests or the profit they can gain by charging websites for preferential treatment, then the web becomes a place where new content is not as abundant as it is today.

II. Telecommunications Act of 1966

First, let’s take a quick look at Telecommunications Act of 1966 (an amendment to the Communications Act of 1934) which empowers the FCC to regulate ISPs and other types of communications companies. Under the Title II of the Communications Act, the FCC has a wide range of powers to regulate what are known as “common carriers.” Title II sets out that it is “unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service.”3 Therefore, the FCC can force “common carriers” to provide services to customers at uniform rates without discrimination. This is exactly what the FCC sought to enforce on broadband providers with their Net Neutrality Rules.

III. The Open Internet Order

The FCC set out their Net Neutrality Rules in their Open Internet Order which lays out rules designed to “incorporate longstanding openness principles that are generally in line with current practices.”4 The Order address two different types of Internet providers: “fixed” broadband providers—which provide access to stationary users such as those in residential buildings—and “mobile” providers.5 The Order sets out three very important rules.

First, the Order requires that both types of providers are transparent in the “information regarding the network management practices, performance, and commercial terms of [their] broadband Internet access services.”6

Second, it prohibits both “fixed” and “mobile” providers from blocking otherwise legal online content or services.7 It also specifically limits “mobile” providers from blocking any services that compete with the “provider’s voice or video telephony services, subject to reasonable network management,” meaning that a mobile network such as, say, Verizon couldn’t block a protocol such as Apple’s FaceTime or iMessages just because they draw users away from using Verizon’s standard voice or text-messaging network.8

Third, and of greatest importance to the current fears over Net Neutrality, the Order prevents  “Fixed broadband providers” from “unreasonably discriminat[ing] in transmitting lawful network traffic.”9 This would prevent an ISP from throttling certain websites—ones that may not have paid that ISP for higher speeds to its customers—while granting others preferential speeds. The FCC adopts this rule in the hopes that both large and small companies will have equal footing when it comes to their success on the Internet and will not be threatened with failure due to their inability to pay ISPs with large subscriber bases extra money for preferential speeds to their customers. This rule forms the major basis for what we refer to today as Net Neutrality.10

IV. DC Circuit Court of Appeals Ruling

All of the above-mentioned rules that the FCC lays out in their Open Internet Order are perfectly valid and enforceable based on the powers granted to the FCC.  However, they are only enforceable against companies that the FCC deems to be “common carriers” which Verizon, the petitioner in this case, is not. Instead the FCC deems Verizon and other Internet companies “information services,” not telecommunication providers. So, because the Telecommunications Act states that only telecommunications providers can be “common carriers,” these rules cannot legally apply to Internet providers as long as they are deemed “information services” by the FCC. Thus, the court had no option but to strike down the Net Neutrality regulations, stating:

Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.11


So, while the decision in this case does hamper the FCC’s Net Neutrality rules for the time being, this is by no means a groundbreaking or permanent issue that threatens the future of the Internet. In fact, Judge Tatel, who authored the majority opinion, openly agrees in the principles behind Net Neutrality, and stating that “broadband providers represent a threat to internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.”12 It does, however, bring up an issue that will surely bring about a fierce debate on the part of Internet providers and the FCC over whether the ISPs should be reclassified as telecommunications services so that the FCC can impose common carrier requirements on them. The cable industry, on behalf of companies such as Comcast, Verizon, and AT&T, has lobbied against this measure for years and, under the previous head of the FCC, was able to successfully avoid the designation. It will be up to the FCC, and its new head, Tom Wheeler, to decide whether or not they can overcome the political battle ahead in an effort to properly regulate these Internet providers.

  1. Edward Wyatt, Rebuffing F.C.C. in ‘Net Neutrality’ Case, Court Allows Streaming Deals, NY Times Technology Blog (NY Times Jan 14, 2014), online at (visited Jan 15, 2014). []
  2. Craig Aaron,  Net Neutrality Is Dead — Here’s How to Get It Back, Huff Post Tech Blog (Huffington Post Jan 14, 2014), online at (visited Jan 15, 2014); Nilay Patel, The Wrong Words: How the FCC Lost Net Neutrality and Could Kill the Internet, The Verge (The Verge Jan 15, 2014), online at (visited Jan 15, 2014). []
  3. 47 USC § 201(a). []
  4. 25 FCCR at 17907 ¶ 4. []
  5. Id at 17934 ¶ 49 []
  6. Id at 17937 ¶ 54; Id 17959 ¶ 98. []
  7. Id at 17942 ¶ 63 []
  8. 25 FCCR at at 17959 ¶ 99. []
  9. Id at 17942 ¶ 63. []
  10. Note that this rule does not exist for “mobile” providers. The FCC claims that this is because of mobile networks’ increased competitiveness, lower speeds, and lower penetration when compared to broadband networks. []
  11. Verizon v FCC, No 11-1355 (DC Cir Jan 14, 2014) []
  12. Id. []

The Who, the Why, and the What of this Blog

The Who

My name is Alexander Nabavi-Noori and I’m a student currently studying Political Science (after a short dance with Electrical Engineering) at UCLA. Politics and Law have been deep interests of mine for a long time, but it is only recently that I realized I also want to pursue them as a career. I’m very interested in debates over Public Policy (I’m a pretty notorious liberal but prefer to develop my opinions based on evidence rather than ideology) and, more recently, the intricacies of Constitutional Law and the relationship between the Federal Government and the States.


The Why

I decided to make this blog as a sort of outlet for my personal thoughts on contemporary policy issues and the things I’m learning by studying legal news1. In high school I joined my school’s chapter of the Junior Statesmen of America and kept a different blog, but this will be the location of my new thoughts. Throughout my time with the club I worked hard to make sure students had an outlet to not only discuss their thoughts on politics, but to learn from each other and create new opinions based on their increasing knowledge through debate. It is my belief that the more people are able to have thoughtful discussions about current political issues, no matter what their knowledge level of these issues, the more they can expand their knowledge and make informed decisions based on the debates they take part in.


The What

I would like to use this blog to share my thoughts on all manner of political and legal discussions, not only to expound my current views on the issues, but also to prompt myself to research them further and possibly develop them more thoroughly and start a debate or discussion about other possible views on these issues.

  1. I also took much of the inspiration on the visual format of this blog (and this introductory post) from the blog of a Federal District Judge’s former blog, Hercules and the Umpire []