A federal court struck down Virginia's same-sex marriage ban yesterday, and with that blow, David Cohen and Dahlia Lithwick at Slate are ready to call the fight. "It's Over: Gay Marriage Can't Lose in the Courts," their headline declares. When the Supreme Court overturned the Defense of Marriage Act, everyone wondered whether the decision effectively struck down gay marriage bans, too. Anthony Kennedy's decision made two arguments, one federalist—that DOMA overrode states' rights to define marriage—and one based on equality, arguing that discriminating against same-sex couples was unconstitutional.
At first, no one was sure whether the latter argument could be used alone against discriminatory state laws. Now we know. There have been 18 lower court cases addressing gay rights since, and equality has won them all unanimously; not one of the 32 judges who heard those cases has dissented. State attorneys general and governors have reached the same conclusion, and are increasingly declining to defend their bans. "Whatever doubt there may have been … is now gone," Cohen and Lithwick write. "Windsor, whether it intended to or not, is a powerful decision against discrimination, and for equality." Click for their full column.