By Steven Rosenfeld / AlterNet
The U.S. Supreme Court opened the legal door to same-sex marriage Wednesday, issuing two rulings that did not confer broad new civil rights but established that same-sex marriage must be treated equally under federal law in the 13 states that allow it.
“The crowds are overwhelmingly ecstatic about this experience,” said Tom Goldstein, publisher of SCOTUSblog.com, describing the scene at the Courthouse. “The bottom line from the court seems to be straightforward. It was not going to announce fundamental rights for same-sex marriage, but it will uphold the rights of people who have been married… sometimes you have to listen to the music, not the individual notes.”
The Court’s majority sent the message that same-sex marriages and individuals deserve equal treatment. In the first case, it threw out a key part of the federal Defense of Marriage Act (DOMA), saying it was unconstitutional on equal protection grounds for the law to say that marriage can only be between a man and a woman. But it did not declare a constitutional right to same-sex marriage.
In a second and narrower decision, the Court held that a private group did not have legal standing to defend California’s Proposition 8, a same-sex marriage ban that was overturned by a lower court. Same-sex marriages can now resume in California, making it the 13th state to recognize these marriage. Supporters in the state say that they are likely to sponsor a new ballot measure, making same-sex marriage legal, to remove the prospect of further legal fights by gay marriage opponents.
Supporters of marriage equality immediately hailed the decisions as big steps forward.
“Twelve years ago I came out to my parents. It was one of the hardest things I’ve ever done, and was not well received,” said Arshad Hasan, Executive Director of Democracy for America. “At the time, it was difficult to imagine them ever accepting this part of me. Two weeks ago, I married the man I love—and received the blessing of love from my father, who overcame his prejudices and preconceptions to take a huge step forward. Today, we as a country took a huge step forward. The Supreme Court’s decision to strike down DOMA is another milestone on the journey both my father and our country have taken: toward acceptance, equality, and love.”
“Today the nation took another historic step towards creating a more perfect union,” said Rick Jacobs, founder CourageCampaign.org, a California progressive coalition. “The judiciary has now caught up with the American public and the tremendous momentum our movement has had since the passage of Prop. 8 five years ago. Love should not be legislated or litigated.”
The Court’s rulings means that progress on marriage equality is moving ahead, but some big and immediate obstacles remain.
Federal law includes more than 1,000 laws and programs and entitlements affecting married couples. Same-sex married couples will now expect to be treated the same as heterosexual couples. But where couples live will initially be a key factor. In some programs and agencies, such as Social Security and the Internal Revenue Service, current rules would deny certain benefits unless couples reside in a state now recognizing same-sex marriage. Children in LGBT unions also face similar obstacles.
Other programs, such as military health care, face no such restriction. That means that the Obama administration and Congress will have to examine the fine print of those rules and make adjustments, which will take time.
Today, 13 states allow same-sex unions along with the District of Columbia, representing a third of the U.S. population. These states are: Maine, New Hampshire, Vermont, New York, Massachusetts, Rhode Island, Connecticut, Delaware, Maryland, Minnesota, Iowa, Washington—and now California as well. Marriage equality and GLBT rights will face a continuing march for equal status, although the language in the Court’s DOMA ruling gives activists a new basis to challenge discriminatory state laws.
California’s Gov. Jerry Brown told county officials on Wednesday to issue marriage licenses “as soon as the Ninth Circuit confirms the stay is lifted.” He said, “After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California.”
The Marriage Equality Rulings
In the DOMA case, United States v. Windsor, the Court held 5-4 that married citizens cannot be treated differently under federal law, citing the U.S. Constitution’s equal protection clause.
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity, by seeking to displace this protection and treating those persons as living in marriages less respected than others,” the decision written by Justice Anthony Kennedy said.
The Court was reviewing the part of the federal Defense of Marriage Act of 1996 that defined marriage to be “only a legal union between one man and one woman as husband and wife” in determining federal benefits. It came in a lawsuit where the plaintiff, Edith Windsor, claimed that she was entitled to a tax refund of more than $363,000 after her same-sex spouse died.
The Court’s right-wing Justices opposed the DOMA ruling. Justice Antonin Scalia gave a heated 10-minute lashing aimed at his five colleagues from the bench and his dissent was cited on law blogs as being perhaps the most bitter that he has ever written.
It is a little early to predict what the more general effect of the ruling will have on the rest of the 1996 law, but most legal experts have previously said that this this kind of ruling would effectively spell the end of the challenged part of the 1996 law.
The Court’s second ruling in Hollingsworth v. Perry, found that private citizens—who oppose same-sex marriage—could not step in and defend California’s Prop. 8 after the state decided not to appeal a lower court ruling that threw out the marriage ban.
“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here,” wrote Chief Justice John Roberts.
While the rulings are an undeniable step forward for LGBT rights, the Court’s rulings were largely on procedural grounds, legal observors noted, which limits their scope.
“The Court’s promotion of same-sex marriage is like a shotgun wedding: done with reluctance, and without the loving embrace of someone fully committed to the sacred union,” wrote Adam Winkler, a UCLA Law School professor, who said the rulings “sound like procedure is more important than people” and were reminiscent of the decisions made by the Court before the heyday of the 1960s Civil Rights era.
The result is that the country will remain divided on red and blue state lines on same-sex marriage for years to come. While today is undoubtedly a victory for marriage equality and LGBT rights, it is slow step forward. Advocates will be forced to fight for years in state legislatures for more state-based rights, while the federal government will now commence erasing the legal distinctions between married couples.