Supreme Court Strikes Down DOMA, 5-4; Technicality Will Allow Gay Marriage in California
The Supreme Court has struck down part of the federal Defense of Marriage Act, which let
states and the federal government refuse to recognize gay marriages performed in other states. From the SCOTUSblog liveblog coverage:
DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.
“DOMA singles out a class of persons deemed by a State entitled ot recognition and protection to enhance their own liberty.”
The opinion and its holding are confined to those lawful marriages.
There is a “careful consideration” standard: In determining whether a law is motivated by improper animus or purpose, discriminations of an unusual character especially require careful consideration. DOMA cannot survive under these principles.
To be clear: Windsor does not establish a constitutional right to same sex marriage. It was important to the outcome that the couple in the case was legally married under state law. The equal protection violation arose from Congress’s disrespecting that decision by New York to allow the marriage.
[UPDATE 10:35 am] AP reports:
The Supreme Court has cleared the way for same-sex marriage in California by holding that defenders of California’s gay marriage ban did not have the right to appeal lower court rulings striking down the ban.
The court’s 5-4 vote Wednesday leaves in place the initial trial court declaration that the ban is unconstitutional. California officials probably will rely on that ruling to allow the resumption of same-sex unions in about a month’s time.
Basically, this is a legalistic punt—the court is neither affirming nor denying a broader national right to same-sex marriage. (Although the DOMA ruling means that where it’s legal, other states and the feds must recognize it.) Because the state of California refused to actually defend Prop 8, private citizens defended the case in court instead. SCOTUS today says they didn’t have “standing” to defend the state—or to sue to appeal to the Supreme Court—which means the litigants against Prop 8 have won by default. Which means we’ll probably be back at the Supreme Court again in the next few years, to settle whether there is a national right to gay marriage or not.
So today’s bottom line: Gay marriage is more protected than it was yesterday, but still not full accepted as a right. States are allowed to allow it or not, and only those states in which gay marriage is legal must recognize marriages performed in other states. But
states cannot refuse to recognize marriages performed in other states, however, and neither can the feds can no longer refuse to recognize same-sex marriages —which means, among other things, gay military spouses can finally start to receive benefits.