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Washington Lawyer

The State of Same-Sex Marriage After Windsor

From Washington Lawyer, November 2013

By Anna Stolley Persky

In June 2003, the U.S. Supreme Court struck down a Texas law that criminalized sodomy. In its 6–3 ruling in Lawrence v. Texas (539 U.S. 558 (2003) the Court found that intimate, consensual sexual conduct between two persons of the same sex was protected under the Fourteenth Amendment. Writing for the majority, Justice Anthony M. Kennedy affirmed the right of gay couples to have consensual sex.

In a sharp dissent, Justice Antonin Scalia warned that the reasoning used by the majority in Lawrence could lead to the Court striking down same-sex marriage bans.

"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity . . . [e]very single one of these laws is called into question by today's decision," wrote Scalia. "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual union, insofar as formal recognition in marriage is concerned."

Ten years later, the Supreme Court would deliver major victories for gay marriage supporters in a pair of landmark rulings.

In United States v. Windsor(570 U.S. __ (2013) the Court found that legally married same-sex couples are entitled to federal benefits, striking down a key provision of the Defense of Marriage Act (DOMA). The act, passed in 1996, defined marriage, for federal purposes, as a union between one man and one woman.

"Justice Scalia was right in that the logic of Lawrence made it extremely difficult to mount an argument against marriage equality," says Paul Smith, a partner in the Washington, D.C., office of Jenner & Block LLP who represented petitioners John Lawrence and Tyron Garner in the 2003 case. "Windsor was the logical next step."

In the second case, Hollingsworth v. Perry (570 U.S. __ (2013), the majority of the Court cleared the way for same-sex marriage in California. The High Court refused to resurrect Proposition 8, the same-sex marriage ban passed by California voters in 2008. Specifically, the Court found that the plaintiffs lacked standing to defend Proposition 8 in Court. Importantly, however, the Supreme Court declined to rule more broadly on the constitutionality of state gay marriage bans.

As often happens after the issuance of major Supreme Court rulings, constitutional law experts and advocates on both sides of the issue found themselves debating the potential ramifications of the majority's holding and dicta in Windsor and Hollingsworth. Scholars, practitioners, and even some judges are attempting to untangle some questions, including to what extent states must apply full faith and credit to other states' same-sex marriage laws.

In the past few months, a flurry of lawsuits challenging state same-sex marriage bans has been filed across the country. Lower courts also have begun to struggle with questions left in the wake of Windsor and Hollingsworth.

In July, a federal judge recognized the out-of-state marriage of a gay couple living in Ohio despite the Buckeye State's constitutional amendment banning same-sex marriage. In Michigan, oral arguments were set to be heard in October concerning a challenge to the state's gay marriage ban and its law preventing unmarried gay couples from jointly adopting children.

"The Supreme Court's rulings raise some questions about gay couples who are legally married in one state and then move to another state where same-sex marriage is not permitted," says Susan Bloch, a nationally recognized constitutional law professor at Georgetown University Law Center. "And the federal government is going to have to figure out when [it will apply] federal benefits to same-sex couples, whether to look at the state in which they were married or the state in which they currently live."

"There's a lot of clean-up to do," Bloch adds.

And then there's the question of Windsor's reach beyond same-sex marriages. Will Windsor affect rules for jury selection or federal workplace discrimination laws, for example?

"Windsor was a landmark decision and it shows that the Supreme Court recognizes the true meaning of equal protection under the law," says R. Scott Oswald, managing principal at The Employment Law Group in Washington, D.C. "It has solidified a new tone in Washington."


Riding the Wave of Public Opinion

Same-sex marriage is legal in the District of Columbia and in 13 states, including New York and Vermont. Three of these states—Maine, Maryland, and Washington—voted to legalize same-sex marriage in the fall last year.

During the same time, Minnesota voted against a proposed constitutional amendment that would have banned gay marriage in the state. Thereafter, the state legislature passed a same-sex marriage bill.

Colorado, Hawaii, Illinois, and New Jersey allow gay couples to enter into civil unions. Civil unions grant couples the rights of state civil marriages, but offer none of the federal benefits of marriage, such as the ability to receive the Social Security benefits of a deceased spouse.

Locally, the District of Columbia has allowed same-sex marriages since 2010. Virginia, meanwhile, passed a constitutional amendment banning same-sex marriage and civil unions in 2006.

Gay marriage advocates say that public opinion has shifted radically from previous decades and even more notably in just the past few years. In July, a Gallup poll found that if given the opportunity to vote on a law legalizing gay marriage in the United States, 52 percent of Americans surveyed said they would support it while 43 percent said they would oppose such law.

In the same poll, 54 percent of respondents said that same-sex marriage should be recognized as valid and should include the same rights as permitted in traditional marriages. Forty-three percent said they were against equal rights for gay marriages. When Gallup asked a similar question in 1996, 27 percent of respondents favored equal rights for same-sex marriage while 68 percent opposed them.

But advocates for traditional marriage point out that 35 states still ban same-sex marriage.

John C. Eastman, a professor at Chapman University Dale E. Fowler School of Law, says that polling can be used to "drive a political narrative with the hope that the narrative becomes true."

Even if public opinion is truly shifting, as polls indicate, traditional marriage supporters predict an eventual backlash in response to court-mandated marriage policy. If courts start invalidating state bans on same-sex marriage, expect to see a wave of ballot initiatives and citizen group-organized public protests in support of traditional marriage, says Eastman.

"The catalyst will come when courts seek to impose a same-sex marriage regime upon the more conservative states that have preexisting traditional marriage laws," says Eastman, founding director of the Center for Constitutional Jurisprudence at the Claremont Institute.

While lawsuits challenging same-sex marriage bans are hitting the courts, some gay rights advocates recognize the potential for backlash, therefore focusing much of their attention on legislative and ballot battles and campaigns for public support.

Campaigners for Freedom to Marry, a New York-based organization advocating for the right of same-sex couples to marry, are pushing for same-sex marriage laws in four states: Illinois, New Jersey, Hawaii, and Oregon.

"There is no state that is automatic or easy," says Evan Wolfson, founder and president of Freedom to Marry. "Each state will require a lot of time, conversation, and money."

Wolfson says his organization's "strategy has always been to win a critical mass of states and [to] build a mass of public support, which together will create the climate that maximizes our chances of winning at the Supreme Court the freedom to marry nationwide."

Bloch agrees that gay rights advocates would be best served by allowing for public opinion to continue its trend.

"Left alone, the country will move along in the same trajectory that it has been moving, with more states modifying their laws to accept same-sex marriage," says Bloch, who also teaches a seminar on the Supreme Court. "The issue will come back to the Court, but what we've learned from Roe v. Wade is that it's better for these highly controversial social issues to be resolved politically, through referendums or the legislative branch, rather than through the courts."

That being said, same-sex marriage supporters are carefully looking at the Supreme Court's wording in Windsor and anticipating another round of battle at the Court soon or sometime in the future.

"We all know the Supreme Court controls its docket, and the justices can and will decide when they are ready to take one of the cases on the issue that will continue to rise before them," says Wolfson. "But look, the Supreme Court punted on the question of interracial marriage before getting it right."


Striking Down DOMA

Until recently, Supreme Court precedent has not supported the concept of gay marriage. In 1986 the High Court ruled in Bowers v. Hardwick (478 U.S. 186 (1986) that there was no fundamental right to engage in homosexual sex. In so ruling, the Court allowed to stand a Georgia law criminalizing oral and anal sex between consenting adults.

Writing for the majority, Justice Byron White said that "to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered history' is, at best, facetious."

But less than a decade later, gay marriage advocates scored a major victory in Baehr v. Lewin when the Hawaii Supreme Court held that a state could not deny gay couples the right to marry (852 P.2d 44 (1993). Hawaii voters later approved a constitutional amendment allowing legislators to enact a ban against same-sex marriage.

Still, the Hawaii Supreme Court's ruling in Baehr is often deemed a turning point in the same-sex marriage fight. After the Hawaii decision, supporters of traditional marriage pressed Congress to define marriage as between one man and one woman. In 1996 DOMA was passed with large majorities in both the U.S. House of Representatives and the U.S. Senate, and was signed into law by President Bill Clinton.

DOMA specifically states that no U.S. state or political subdivision is required to recognize a same-sex marriage from another jurisdiction. In addition, section 3 of DOMA codified marriage as a legal union between a man and a woman. This section applied to federal purposes, such as health benefits for federal workers' spouses and Social Security survivor benefits.

But that same year, the Supreme Court found unconstitutional Colorado's constitutional amendment preventing any city, town, or county in the state from taking action to recognize gays or lesbians as a protected class. Justice Kennedy concluded for the majority in Romer v. Evans (517U.S. 620 (1996) that the amendment was passed with the ultimate goal of harming a "politically unpopular group."

In 2003 Justice Kennedy wrote the majority opinion in Lawrence, finding that Texas' law criminalizing sodomy violated the Due Process Clause. In so ruling, the Court struck down similar laws in 13 other states.

Lawrence involved two gay men who were discovered by police having sex in a private apartment. Kennedy wrote that the men's "right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

It took a few years, but the issue of same-sex marriage did land in the Supreme Court, presenting questions about the legitimacy of DOMA and a court's ability to negate a state initiative against same-sex marriage.

After California voters approved Proposition 8, federal courts in San Francisco struck down the ban on discrimination grounds. In its 5–4 decision in Hollingsworth, the Supreme Court ruled that the private group behind Proposition 8 had no standing to defend the ban in federal court, even after California Gov. Jerry Brown and other state officials refused to do so.

The decision, written by Chief Justice John Roberts, sidestepped the legitimacy of same-sex marriage bans by ruling on procedural grounds.

"You could hear in oral argument that the Court was not too anxious to decide the merits of the constitutionality of Proposition 8, so they found a jurisdictional way to 'duck the issue,'" says Bloch. "They were deliberately trying not to judge the constitutionality of state laws that ban same-sex marriage."

But in Windsor, the Supreme Court confronted DOMA. The majority, with Kennedy at the helm, found that DOMA unlawfully denied federal benefits to same-sex couples and barred federal recognition of same-sex marriages.

The case involved longtime partners Edith Windsor and Thea Spyer of New York. The couple married in Canada in 2007, and two years later Spyer died. Windsor was forced to pay more than $363,000 in federal estate taxes because DOMA did not allow the Internal Revenue Service (IRS) to recognize her as a surviving spouse.

Writing for the majority, Justice Kennedy stated that DOMA deprived same-sex couples of "the liberty of the person protected by the Fifth Amendment." The law demeans the "moral and sexual choices" of same-sex couples and humiliates the "tens of thousands of children now being raised by same-sex couples," Kennedy wrote.

"The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity," Justice Kennedy wrote. "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."


In Defense of Traditional Marriage

After Windsor, many Republican congressional leaders made it clear that they were not going to pursue any legislation on the national level to somehow replace DOMA. House Speaker John Boehner said he was disappointed in the Supreme Court's ruling, and then quickly indicated that the battle was to be fought at the state level.

"While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances," said Boehner in a statement. "A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman."

Meanwhile, traditional marriage supporters criticize Kennedy's ruling as vague and dismissive.

"Justice Kennedy's opinion is a jumble of assertions that amount to nothing more than Kennedy's own disapproval of DOMA," says Washington, D.C., lawyer Edward Whelan, president of the Ethics and Public Policy Center. "His cavalier disregard of the justifications for DOMA and his reckless imputation of animus to the broad bipartisan coalition of legislators that enacted DOMA invite other judges to be similarly dismissive of state marriage laws."

Certainly, constitutional law experts and advocates on both sides are trying to figure out whether Windsor offers guidance—and by how much—on the level of scrutiny courts should apply to state laws defining marriage as between one man and one woman.

Eastman, who specializes in constitutional law, says it's impossible to discern the level of scrutiny Kennedy used to reach his conclusion.

"He's as vague in Windsor as he was in Lawrence," says Eastman. "Is sexual orientation a suspect class? Is marriage a fundamental right? Kennedy avoids all those questions and leaves everybody to speculate."

And the dissenting justices could not even agree on the level of scrutiny used or the potential impact of the High Court's holding. In his dissent, Justice Scalia warned that Kennedy's ruling would create an opening for more rigid scrutiny of all state same-sex marriage bans.

"By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition," Scalia wrote. "[T]he majority has declared open season on any law that (in the opinion of the law's opponents and any panel of like-minded federal judges) can be characterized as mean-spirited."

Meanwhile, Roberts predicted that the majority's ruling will have little effect on state same-sex marriage bans because the ruling, he said, was based on principles of federalism.

"The big question is whether Scalia's prediction or Roberts' prediction will be accurate. Will, as Scalia suggests, Kennedy's rhetoric lead to the other shoe falling?" asks Eastman. "Which view will prevail?"

Not surprisingly, gay rights advocates predict that courts will now view with suspicion state laws banning same-sex marriage. They suggest that while the Supreme Court still has not formally added a new classification to the tiers of heightened scrutiny, courts have embraced a scrutiny described by Jenner & Block's Smith as "rational basis with a bite."

Throughout the country, courthouses have been hit with lawsuits challenging same-sex marriage bans.

In Pennsylvania, for example, the American Civil Liberties Union (ACLU) has filed a lawsuit in federal court in Harrisburg challenging the constitutionality of the Keystone State's ban against same-sex marriages. Pennsylvania Attorney General Kathleen Kane has said that she will not defend the state's 17-year-old law prohibiting gay marriage.

Similar lawsuits also have appeared in courthouses in Arkansas, Kentucky, New Mexico, and Oklahoma, to name a few. New Jersey has recognized civil unions for same-sex couples since 2006. In 2012 the state legislature passed a freedom to marry bill, which was vetoed by Gov. Chris Christie. In September, New Jersey Superior Court Judge Mary C. Jacobson ordered the state to allow same-sex couples to wed.

"The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey," wrote Jacobson.

In Virginia, the ACLU, the ACLU of Virginia, Lambda Legal, and Jenner & Block filed a federal class action lawsuit in August challenging the state's ban on gay marriage and its refusal to recognize marriages of same-sex couples legally entered elsewhere.

The lawsuit, filed in the U.S. District Court for the Western District of Virginia, was made on behalf of two lesbian couples from Staunton and Winchester. It also seeks to represent all same-sex couples in Virginia who want to get married or have already been married in jurisdictions that have legalized same-sex marriage.

In New Mexico, where same-sex marriage is neither expressly recognized nor prohibited by law, 33 counties have asked the state Supreme Court to settle the issue once and for all.

"Legal challenges to gay marriage bans are cropping up all over the country," says Matthew D. McGill, a partner in the Washington, D.C., office of Gibson Dunn & Crutcher LLP who helped to represent the plaintiffs challenging California's Proposition 8. "It really isn't a question of where the next battle is going to be—it's where isn't the next battle going to be. Bans on gay marriage by ballot or statute . . .are vulnerable wherever they are, and you will see a tidal wave of litigation to strike them down."

Amir Tayrani, also a partner at Gibson Dunn, believes the broad dicta in Kennedy's decision in Windsor will be helpful for any legal challenges to state same-sex marriage bans.

"Justice Kennedy comes back again and again to the importance of the marriage relationship and to the fact that having a two-tiered marriage system denies gays and lesbians the equal dignity to which they are entitled under the Constitution," says Tayrani. "Applying that reasoning to states that deny recognition to gays and lesbians, the right to marry leads inexorably to the conclusion that such discrimination is unconstitutional."


'Full Faith and Credit'

One of the biggest questions left unanswered by the Supreme Court is to what extent states that don't allow same-sex marriage must recognize gay marriages performed where it is legal.

As lawyers know, article IV, section 1, of the Constitution requires that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Under most interpretations, marriages are considered proceedings that must be recognized if performed legally in another state. The remainder of DOMA, however, explicitly states otherwise.

The majority in Windsor specifically struck down section 3 of DOMA, but it did not directly address section 2 of the law, which allows states to decline to recognize same-sex marriages from other states.

Gay marriage advocates are now pushing for Congress to pass the Respect for Marriage Act, which would invalidate DOMA in its entirety. President Obama and former President Clinton have expressed support for the bill.

Meanwhile, over the summer, U.S. District Court Judge Timothy Black in Ohio cited Windsor as he addressed the question of whether states must apply full faith and credit to same-sex marriages performed in other states.

The case before Judge Black involves John Arthur and his partner of 20 years, Jim Obergefell. The Ohio couple was married in Maryland in early July. Arthur, who is bedridden with amyotrophic lateral sclerosis, wants to list Obergefell as his spouse on his death certificate. However, the family plot is located in a cemetery that only allows descendants and spouses to be buried in the same plot.

Moreover, Ohio has banned same-sex marriage since 2004. In granting a temporary restraining order, Judge Black ensured that Arthur's death certificate would reflect that Obergefell is his surviving spouse.

"The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: 'to impose inequality' and to make gay citizens unequal under the law," wrote Black.

In September Judge Black approved a request to expand the lawsuit to include all same-sex couples in similar situations. Attorneys for the plaintiffs are asking Black to require Ohio's health department director to order funeral directors and coroners to list gay clients as married if they were legally wed in another state. He is expected to issue a ruling in December.

But Eastman points out that a judge in Georgia or Texas, for example, will likely focus more on Kennedy's discussion of federalism and come out with a completely different conclusion.

"We will end up with a split among the courts and then a split among the appellate courts," predicts Eastman. "And at some point, we'll see—will we have a court-imposed redefinition of marriage for the entire country?"

Other questions relating to same-sex marriage have cropped up in federal courts in the aftermath of Windsor and Hollingsworth. For example, what happens when a county refuses to abide by the state's same-sex marriage ban?

In Pennsylvania, officials have filed a lawsuit to stop a rogue county that has been issuing marriage licenses to gay couples despite the state's ban on same-sex marriage.

Montgomery County, a Philadelphia suburb, has been accused of "repeatedly and continuously" flouting the law after its register of wills, D. Bruce Hanes, began issuing the licenses in July following the Supreme Court's ruling in Windsor. Hanes said he had decided to "come down on the right side of history and the law."

In September, Pennsylvania Commonwealth Court President Judge Dan Pellegrini barred Hanes from further issuing marriage licenses to same-sex couples, saying a "clerk of courts has not been given the discretion to decide . . . whether the statute he or she is charged to enforce is a good idea or a bad one, constitutional or not." Hanes plans to appeal the ruling.

Meanwhile, a case in Kentucky raised the question of spousal privilege for a gay couple living in the state where same-sex marriage is not recognized as well those marriages that occurred outside the state.

Geneva Case and Bobbie Jo Clary were joined in a Vermont civil union in 2004 before Vermont began recognizing same-sex marriages. Clary is accused of beating a man to death, and Case sought to shield herself from testifying against her partner by asserting spousal privilege.

In September, Jefferson Circuit Court Judge Susan Schultz Gibson ruled that the privilege does not apply to the couple as they are not deemed married in Kentucky or even in Vermont, which legalized same-sex marriage only in 2009.

In Michigan, U.S. District Court Judge Bernard Friedman denied a motion to dismiss a challenge to the state's same-sex marriage ban and adoption law, saying a gay couple was "entitled to their day in court and they shall have it." As of press time, Judge Friedman scheduled oral arguments at the beginning of October.

The case involves April DeBoer and Jayne Rowse, a lesbian couple residing in Michigan. Between them, they have three adopted children. Michigan law, however, bars them from adopting each other's children. Were they heterosexual, state law would have allowed them to jointly adopt their children, advocates say.

In denying the motion to dismiss, Judge Friedman emphasized that the Supreme Court majority in Windsor pointed out that that the rights of children being raised by gay couples could be affected by same-sex marriage bans.

"[O]f particular importance to this case, the justices expressed concern that the natural consequence of . . . discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of 'tens of thousands of children now being raised by same-sex couples' as well," wrote Friedman. "This is exactly the type of harm plaintiffs seek to remedy in this case."

On the federal level, officials also have to address certain questions when determining federal benefits for gay couples, such as which state marriage laws apply and under what circumstances should benefits apply.

There is the possibility that agencies will differ on how they will handle the question. The U.S. Department of Defense announced in August that it will make spousal and family benefits available to legally married same-sex military couples. That same month, the U.S. Department of the Treasury and the IRS ruled that same-sex couples legally married in states that recognize such unions "will be treated as married for federal tax purposes."

 

Windsor's Wider Reach

Legal scholars and advocates also are debating the potential reach of Windsor and Hollingsworth outside of same-sex marriage and whether the twin decisions could ultimately affect a variety of areas, such as jury selection and employment.

"Marriage is certainly important, but there are a whole bunch of other instances out there in our country where gay people are treated differently," says Roberta A. Kaplan, a partner in the New York office of Paul, Weiss, Rifkind, Wharton & Garrison LLP and counsel for Windsor. "The question is to what extent will any of these distinctions continue to stand in light of Windsor?"

For example, constitutional law experts and gay rights advocates are following a California case that has nothing to do with marriage, but instead focuses on jury selection. Nevertheless, Windsor has a potential impact on the appellate review.

The case, on appeal to the U.S. Court of Appeals for the Ninth Circuit, concerns the question of whether gays can be excluded from juries because of their sexual orientation. The question arises out of an antitrust litigation between Abbott Laboratories and SmithKline Beecham Corp. overpricing of an HIV drug.

At trial in 2011, a potential juror apparently revealed that he was gay. The lawyer for Abbott then used a peremptory challenge to eliminate him from the jury pool. A lawyer for SmithKline in turn raised a challenge under Batsonv. Kentucky (476US 79 (1986), which states that race or gender cannot be used as the basis for eliminating a prospective juror. To date, federal courts have not recognized Batson challenges on the basis of sexual orientation.

In response to the court's request for additional pleading in light of Windsor, lawyers for Abbott argued that Windsor did not hold that classifications based on sexual orientation are subject to heightened scrutiny, but rather kept with the rational basis analysis.

"Because circuit precedent applies rational basis review under the Equal Protection Clause to classifications based on sexual orientation, existing law precludes application of Batson to sexual orientation," according to Abbott's court filing.

But SmithKline argues that the Windsor ruling "compels the conclusion that if the Equal Protection Clause offers any meaningful protection to gays and lesbians, the Clause must guarantee them the right and duty to participate in our country's jury process."

SmithKline lawyers also contend that Windsor confirmed that heightened scrutiny applies to sexual orientation, and that sexual orientation is a suspect classification.

"Just as DOMA 'demeans' and 'humiliates' those same-sex couples and their children . . . striking gays and lesbians from federal juries blatantly and seriously 'demeans' and 'humiliates' those potential jurors," the company said in its court filing.

During the hour-long hearing on September 18, a three-judge panel of the court continued to wrestle with the question of whether a potential juror can be removed from a case because of his or her sexual orientation. Legal experts say the case could reach the Supreme Court.

Oswald, the Washington, D.C., lawyer who specializes in employment and whistleblower cases, predicts that lawsuits citing Windsor and questioning the different treatment of gay people in a variety of contexts, including workplace protection, will continue to surface in courts.

"At its most literal level, Windsor speaks only to the federal obligation to treat all lawful marriages equally," says Oswald. "The underlying logic of the opinion would prohibit the denial of any federal right or benefit solely on the basis of sexual orientation."

Oswald believes that if cases involving workplace discrimination based upon sexual orientation travel up to the Supreme Court, a majority of justices could be open to expanding the scope of protection.

"Windsor shows, I think, that this Supreme Court will pose no obstacle to expanded workplace protections," says Oswald. "But as a legal matter, the Court's decision does not demand such expansion."

In light of Windsor, Oswald would like to see Congress enact further protection against employment discrimination. Oswald is also calling on President Obama to "fulfill his promise" to prohibit sexual orientation employment discrimination by federal contractors.

Meanwhile, traditional marriage supporters anticipate court battles over whether Windsor allows employers to operate a business without being forced to set aside their religious beliefs on issues like homosexuality and same sex-marriage.

The Ethics and Public Policy Center's Whelan would like to see state legislatures and Congress act to protect the ability of private entities and individuals to conduct themselves in accordance with their religious beliefs.

"This threatens to play out as a long and ugly assault on the religious liberty of Americans who continue to adhere to the perennial understanding of marriage that President Obama himself professed up to a year ago," Whelan says.

Freelance writer Anna Stolley Persky is a regular contributor to Washington Lawyer.