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110 Nw. U. L. Rev. Online 1 (2015-2016)

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Copyright 2015 by Howard M. Wassennan                                    Vol. 110
Northwestern University Law Review





                                                     HowardM      Wasserman *


     On June 26, 2015, the Supreme Court of the United States ruled in
Obergefell v. Hodges that prohibitions on same-sex marriage violate the
Fourteenth Amendment.1 In hindsight, the decision seems inevitable, the
culmination of a precisely two-year race towards marriage equality that
began with the Court's 2013 invalidation of the federal Defense of Marriage
Act on June 26, 2013.2 Federal trial and appellate courts were almost
uniform in declaring state bans on same-sex marriage unconstitutional,3 and
the Supreme Court denied certiorari4 or stays of judgment5 in all of those
cases. Additionally, high-ranking public officials in several states gave up
their opposition to marriage equality, ordering the issuance of licenses to
same-sex couples even before all litigation had concluded.6
     Alabama represented the glaring exception. During winter and spring

     Professor of Law, FIU College of Law. Thanks to James Grimmelmann, Josh Blackman, Doug
Laycock, Adam Steinman, and readers of PrawfsBlawg.com for comments and feedback.
   1 No. 14-556, 2015 WL 2473451 (2015) [http://perna.cc/43H2-96VP].
   2 See United States v. Windsor, 133 S. Ct. 2675 (2013) [http://perma.cc/YTV8-ZJB4].
   3 Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) [http://perma.cc/WGF4-VZD3]; Bostic v.
Schaefer, 760 F.3d 352 (4th Cir. 2014) [http://perma.cc/MNM4-39LQ]; Kitchen v. Herbert, 755 F.3d
1193 (10th Cir. 2014) [http://perma.cc/CR5F-PAQ7]; Strawser v. Strange, 44 F. Supp. 3d 1206 (S.D.
Ala. 2015) [http://perma.cc/QCG9-JEBG]; Searcy v. Strange, No. 14-0208-CG-N, 2015 WL 328728
(S.D. Ala. Jan. 23, 2015) [http://perma.cc/ALM6-XD4B]; Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D.
Fla. 2014) [http://perma.cc/3BC3-RKYW].
   4 See, e.g., Bogan v. Baskin, 135 S. Ct. 316 (2014) (mem.) (case from Indiana); Walker v. Wolf,
135 S. Ct. 316 (2014) (mem.) (case from Wisconsin); McQuiggv. Bostic, 135 S. Ct. 314 (2014) (mem.)
(case from Virginia); Smith v. Bishop, 135 S. Ct. 271 (2014) (mem.) (case from Oklahoma); Herbert v.
Kitchen, 135 S. Ct. 265 (2014) (mem.) (case from Utah).
   5 Strange v. Searcy, 135 S. Ct. 940 (2015) (mem.) [http://pernma.cc/N9M9-X833]. Butsee id. at 941
(Thomas, J., dissenting from denial of application for stay) (This acquiescence may well be seen as a
signal of the Court's intended resolution of that question. This is not the proper way to discharge our
Article III responsibilities. And, it is indecorous for this Court to pretend that it is.).
   6 News Release, Attorney General Pam Biondi, Attorney General Pam Bondi's Statement
Regarding    Judge    Hinkle's   Order    (Jan.   1,    2015),    available  at
[http://perma.cc/2LYK-YSYV]; Letter from Attorney General Kamala Harris to Governor Edmund G.
Brown         Jr.        (June        3,        2013),        available      at
http://oag.ca.gov/sites/all/files/agweb/pdfs/ht/agprop 8 letter.pdf [http://perma.cc/4FVP-E7TN].

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