Supreme Court Strikes Down DOMA, Prop 8; State Bans Survive

Gay rights supporter Vin Testa waves a rainbow flag in front of the Supreme Court. The court struck down the Defense of Marriage Act and said a private citizen had no standing in a related case from California. (AP)

The Supreme Court on Wednesday struck down the Defense of Marriage Act, the federal law defining marriage as between a man and a woman. But the court stopped short of declaring a nationwide right to gay marriage, ensuring the divisive debate over the issue will continue to unfold state by state.

The court also left in place a lower court’s ruling that California’s Proposition 8 ban on gay marriage is unconstitutional, deciding that case on technical grounds. As a result, gay marriage is once again legal in California.

The pair of opinions means gay marriage is now legal in 13 states plus the District of Columbia. About one-third of Americans now live states where gay marriage is legal.

Although the high court’s Defense of Marriage Act (DOMA) decision doesn’t apply directly to the three-dozen states that have same-sex marriage bans, it may provide legal ammunition to those who want to overturn them.

On Wednesday afternoon, the American Civil Liberties Union announced that it would launch a national, state-by-state effort to challenge state bans. The first openly gay lawmaker in Alabama said she’d challenge her state’s ban, and activists in Wisconsin said they might do the same.

“We’ll certainly be looking into it,” said Katie Belanger of Fair Wisconsin, which advocates for same-sex marriage. “The decision that came down was what we had anticipated, and victory still means that there’s a lot of work to be done.”

The court’s ruling declared DOMA to be an unconstitutional violation of equal protection for gay couples married legally in their states. DOMA had blocked the federal government from recognizing those marriages, so same-sex married couples were treated differently under federal tax laws and were not entitled to a host of federal benefits and other privileges afforded to heterosexual couples.

Before Wednesday’s decision, some had predicted the justices would rule more narrowly, relying on states’ rights arguments to strike down DOMA. That approach would have buttressed those states that have legalized gay marriage, but strengthened state bans at the same time. Instead, Justice Anthony Kennedy, writing for the majority, called DOMA plainly unconstitutional and discriminatory.

“The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law,” Kennedy wrote in the 5-4 majority opinion, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. “This raises a most serious question under the Constitution’s Fifth Amendment.”

“DOMA writes inequality into the entire United States Code,” he added.

But Kennedy also stopped short of declaring state bans on same-sex marriage to be unconstitutional, meaning both supporters and opponents of those bans are likely to seize on portions of the ruling going forward.

On one hand, Kennedy’s opinion acknowledges that states historically have had the power to define marriage within their borders—an argument that supporters of same-sex marriage bans will use to defend them from legal challenges in the wake of Wednesday’s ruling.

On the other hand, the ruling is a strong rebuke to the argument that the federal government has a compelling interest in refusing to recognize same-sex marriages. Advocates of same-sex marriage are likely to argue that state bans should be viewed through the same lens.

“It just is not thinkable that the court would say that it’s fine for the state to cancel out the marriage, [that] if you move to Texas, for Texas to say, ‘the marriage doesn’t exist,’” Mae Kuykendall, a law professor at Michigan State University said. “Texas is trying, exactly the way the feds were trying, to take away the dignity and hard rights that have been granted by a sovereign state.”

“Texas has absolutely no interest in canceling marriages,” Kuykendall added, “particularly when the feds are recognizing them.”

In his dissent, Chief Justice John Roberts also suggested that Wednesday’s ruling would open the door to challenges to state bans.

“While ‘[t]he State’s power in defining the marital relation is of central relevance to the majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions,” Roberts wrote. “So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.”

The court, Roberts added, “may in the future have to resolve challenges to state marriage definitions affecting same-sex couples.”

Still, others cautioned against reading too much into the court’s ruling Jonathan Rauch, a senior fellow at the Brookings Institute, noted that public support for gay marriage bans remains strong in the states that have them. As a result, Rauch said, it is unlikely that same-sex marriage will be legalized nationwide anytime soon.

“The Supreme Court of course left the door wide open to other challenges, essentially invited them,” Rauch said. “But what Kennedy’s saying is the federal government needs to follow the states.”

“[The court] did not announce a new judicial doctrine,” he added.

While the court’s DOMA decision was a clear victory for same-sex marriage supporters, its decision on California’s Proposition 8 was more of a mixed bag.

The Supreme Court let stand a lower court’s ruling because it determined that the backers of the ban lacked standing to appeal that court’s decision.  In so doing, the high court allowed same-sex marriage to continue in California while sidestepping the question of whether state-by-state gay marriage bans are constitutional.

Writing the majority opinion in the Proposition 8 case, Roberts explained that a participant in a lawsuit “requires, among other things, that [they] have suffered a concrete and particularized injury.”

He added: “We find that petitioners did not have standing.”


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