Same-Sex Marriage Ok Under Federal and State Law


Wall Street Journal reports that two decisions of the United States Supreme Court were heard on the last day of Court’s term.  They have the essential effect of Okaying same-sex marriage under federal and state law.

 In the first case, in a 5-4 decision, the Court declared that the 1996 Defense of Marriage Act to be unconstitutional.  The Act denied federal benefits including Social Security survivor benefits, immigration rights and family leave, to gay couples legally married under state law.

 Justice Anthony Kennedy wrote the majority opinion.  The majority included Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.  They are considered to be the liberal wing of the Court, with Justice Kennedy as the swing vote.

 Judges dissenting were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.  Three of them wrote dissenting opinions.

 DOMA, which contains more than 1,000 provisions, “writes inequality into the entire United States Code,” said Justice Kennedy. He asserted that DOMA violated the right to liberty protected by the Fifth Amendment.

 The case against DOMA had been brought by Edith Windsor, an 84-year-old woman.  She and her companion, Thea Spyer, had lived together in New York for 44 years, and were married in Canada in 2007. When Spyer died in 2009, Ms. Windsor was presented with $363,000 in federal estate taxes that would not have been assessed had the couple been considered by the federal government to be married.

 In a dissenting opinion, Justice Antonin Scalia reviled the majority opinion as a “lengthy lecture” on how the majority’s moral judgment in favor of same-sex marriage is superior to Congress’s “hateful moral judgment against it.” He maintained that similar decisions in favor of marriage would actually disparage the “‘personhood and dignity” of same sex couples. He argued that the Constitution neither condoned nor forbade same-sex marriage, just as it neither mandated nor condemned no-fault divorce, polygamy, or the consumption of alcohol.  Favoring relationships between a man and a woman did not by their nature demean other sexual relationships.

 Justice Kennedy described DOMA’s principal effect as identifying a subset of marriages and treating them as unequal to marriage of opposite-sex couples, despite the fact that the same-sex marriages were sanctioned by the states. He said that Congress had no business undermining a state’s decision to extend “the recognition, dignity, and protection” of the marital contract of same-sex couples.

 But even those supporting a bar to same-sex marriage in the states have to deal with a decision that effectually Okayed same-sex marriage under state law as well.

 NBC News reports that in a companion case, the Court ruled that it lacked jurisdiction to consider the appeal from a decision of a California district court that had found Proposition 8, a voter-mandated ban on gay marriage, to be unconstitutional.  The state had decided not to appeal the decision, but proponents of the ballot measure tried to carry the appeal on their own.  The Court determined that they lacked standing to do so, meaning that they were not a party to the suit and could not challenge the decision in appellate court.  Although proponents of Prop 8 could still argue that the district court’s decision applied only to the four couples who had brought suit, attacking the ballot measure in court, they could not circumvent the lack of standing issue.

The district court’s 2010 decision defied the California Supreme Court, which had upheld Proposition 8 in 2009.

The Supreme Court’s decision did not affirm the district court’s decision in striking down bans on gay marriage as unconstitutional.  It merely determined that it lacked jurisdiction to consider the case.  However, the effect of the decision is that same-sex marriage could resume in California. This decision was also 5-4, but in this case the majority decision was written by Justice Roberts.

 Washington Wire reports President Obama as praising the Supreme Court’s decision in Windsor, declaring that the Defense of Marriage Act, was “discrimination enshrined in law” He echoes Justice Kennedy in declaring that DOMA treated gay and lesbian couples as a lesser class of people.

Exactly ten years ago, the Court had decided, in Lawrence v. Texas, that anti-sodomy laws across the country similarly violated the Constitution.

A violent clash between police and gay patrons led to the Stonewall riots, considered the beginning of the gay rights movement.

With virtual OK of same-sex marriage under state and federal law, the way has been opened for the gay community to be able to exercise a fundamental constitutional right.


By:  Tom Ukinski



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