Following a Virginia federal judge's decision to strike down Virginia's ban on same-sex marriage, Professor David S. Cohen, along with co-author Dahlia Lithwick, declared - via the title of their Feb. 14 Slate article - "It's Over: Gay Marriage Can't Lose in the Courts."

The U.S. Supreme Court's decision to strike down the Defense of Marriage Act in Windsor v. United States last term left behind some ambiguity on whether bans on same-sex marriage were outright unconstitutional, Cohen and Lithwick wrote.  The reason for such ambiguity was that the case was decided on equality grounds and also the basis that the federal government did not have the right to circumvent state's rights and define marriage, they said.  However, as Cohen and Lithwick claim in their Slate article, following a series of state and federal decisions addressing the equality component of same-sex marriage, Windsor's implications are no longer ambiguous.

Since Windsor, in at least 18 decisions, "32 different judges have considered whether Windsor is merely about the relationship between the state and federal governments or whether it is about equality. And all 32 of them have found for equality. In other words, 32 accomplished, intelligent lawyers, appointed by Democrats and Republicans, whose job it is to read precedent, have ruled for equality. Not a single one has disagreed." Beyond that, state attorney generals, tasked with defending state laws, have consistently found that bans on same-sex marriage are unconstitutional as a result of Windsor, Cohen and Lithwick added.  This, they argue, definitively makes Windsor, "whether it intended to or not . . . a powerful decision against discrimination, and for equality," and, thus, leaves bans on same-sex marriage without a leg to stand on in the courts, they suggested. 

Professor Cohen's scholarship explores the intersection of constitutional law and gender, his thoughts from Slate were also featured in articles from The Washington Post and the Christian Science Monitor covering the Virginia decision to strike down the same-sex marriage ban.