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Case Western Reserve Law Review


same-sex marriage, LGBT, judicial independence


Judicial decisions that hold same-sex marriage bans unconstitutional, no matter how that conclusion is reached, overturn laws or constitutional provisions that were passed with the support of a democratic majority. This Article takes an in-depth look at judicial activism and judicial independence to determine whether such victories for same-sex litigants were done properly by the judiciary. In the eyes of the Framers, an independent judiciary was to be a crucial check on the other branches’ constitutional limitations. With this in mind, judicial independence—where, in contrast with activism, judges meticulously apply the well-examined facts to controlling precedent without accounting for majority views—is a key to maintaining our democratic system.

This Article examines many of the cases that resulted in victories for LGBT litigants. First, cases ruling state same-sex marriage bans unconstitutional, for example, Hawaii’s Baehr v. Lewin and Iowa’s Varnum v. O’Brien, are analyzed. Also, the cases declaring the federal Defense of Marriage Act unconstitutional, including Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services, and the district court, circuit court, and Supreme Court decisions in Windsor, are discussed. Although these cases tend to overturn laws supported by democratic majorities, the courts pay great attention to the details of the cases and steadfastly analyze and apply precedent.

After looking in detail at cases establishing same-sex marriage rights, one must conclude that the courts engaged in strong judicial independence. Such independent judicial decision making contains sound legal analysis and is constitutionally necessary.