Washington, DC — The Supreme Court announced this morning that the Defense of Marriage Act is unconstitutional.
Stretching the judicial drama to the final day of a term that started in October, the court’s nine justices will also reveal their conclusions concerning California’s Proposition 8.
“The justices are not likely to announce that the ongoing debate over same-sex marriage is now over,” said Richard W. Garnett, a University of Notre Dame Law School professor.
He said it appears that “a majority of the justices are not looking to issue sweeping and definitive rulings on hot-button questions and are instead finding ways to resolve these cases that allow other actors, including Congress, to play the leading role.”
Certainly, for each question answered Wednesday, many new ones will arise.
The main Proposition 8 question is what the court will do with the California ballot measure that prohibited same-sex marriage. The follow-up questions could range from how the reasoning affects other states that block gay couples from marrying, to precisely what happens next in California.
The main Defense of Marriage Act question concerns the future of a federal law that bars same-sex couples from receiving the federal rights and benefits afforded opposite-sex couples. The follow-ups could include exactly how to apply the 1,100-plus provisions of federal law in which marriage matters, from tax deductions to immigration status.
“While we can’t predict what the court will say, the past few years building up to this day have seen a sea change in accepting the idea that all loving and committed couples . . . deserve the protections and dignity that only come with marriage,” James Esseks, an attorney with the American Civil Liberties Union, said Tuesday.
Advocates from all sides are ready for prime time once the decisions come.
At New York City’s Lesbian, Gay, Bisexual and Transgender Community Center, Edith Windsor, the now 84-year-old woman who challenged the Defense of Marriage Act, will be appearing at a noon press conference. Ninety minutes later, in Los Angeles, California Attorney General Kamala Harris is convening her own event. Twitter, social media and a tidal wave of press releases are poised to explode.
“I would say both (Windsor), and the rest of America, are ready for a fair ruling,” said Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender and AIDS Project.
The California case arose after the state Supreme Court ruled same-sex couples had the right to marry. Voters subsequently changed the state’s constitution in 2008, in the Proposition 8 ballot measure, to limit marriages to those between one man and one woman.
The challenge to Proposition 8 was brought on behalf of several same-sex couples, including Kristin M. Perry and her partner Sandra Stier, who were denied marriage licenses.
“I’m a 45-year-old woman,” Perry testified during the 2010 trial. “I have been in love with a woman for 10 years and I don’t have a word to tell anybody about that.”
One relatively narrow option for the Supreme Court now is to conclude Proposition 8 supporters lacked the legal standing to bring a case. Standing is the legal term for being eligible to file a lawsuit. To have standing, an individual must have must have either suffered an injury or face an imminent threat of injury.
California officials declined to defend the same-sex marriage ban. Instead, a conservative former Southern California state legislator and allies argued on the proposition’s behalf. At least some justices during oral arguments in March suggested skepticism about their standing.
“They really are no more than a group of five people who feel really strongly that we should vindicate this public interest,” Justice Stephen Breyer said at the time.
If the Supreme Court concludes the Proposition 8 supporters lacked standing, the case will be kicked back to the trial judge’s decision. At most, then, the decision would only affect marriage rights in California. This possibility might entice justices who are leery of making a sweeping national judgment.
The other case involves Section 3 of the Defense of Marriage Act, which declares that, for the purposes of providing federal benefits, only opposite-sex marriages count. The definition is important because it determines eligibility for a host of federal rights, benefits and privileges.
The Government Accountability Office has identified more than 1,100 areas of federal law in which marriage matters. These range from tax and welfare benefits to employment and immigration policies. A same-sex military couple, for instance, is denied housing, health insurance and disability benefits, nor is the spouse eligible for burial alongside his or her spouse in a national cemetery.
The federal law defining marriage inserted the national government into what had traditionally been state territory. If justices want a narrow basis to strike the law down, this federal intrusion might be one of them.
Congress passed the Defense of Marriage Act in 1996 by wide margins. In the years since, though, a number of supporters began backpedaling. It is now opposed by former congressman Robert Barr of Georgia, a Republican author of the bill who in July 1996 decried “the flames of hedonism, the flames of narcissism, the flames of self-centered morality (that) are licking at the very foundations of our society: the family unit.”
The Obama administration, too, initially defended the federal law, as is customary for administrations, but it stopped in February 2011 after concluding that Section 3 violated the Constitution. Congressional Republicans then picked up the torch.
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