By any standard, the Supreme Court’s decisions striking down Section 3 of the discriminatory Defense of Marriage Act (DOMA) and clearing the way for the end of Proposition 8 in California are landmarks in the struggle for LGBT equality.
Not since the Court’s decision 10 years ago that laws criminalizing same-sex sexual intimacy violate the freedom of LGBT people to control their lives and define their relationships has the nation’s highest court offered such a resounding affirmation that governmental discrimination against LGBT people is incompatible with the guarantees of our Constitution.
That is truly something to celebrate as we head into the last weekend of LGBT Pride Month. It also offers a clear path for winning the freedom to marry for same-sex couples everywhere.
Writing for the Court in the DOMA case, Justice Anthony Kennedy was unrelenting in his criticism of the law, which prohibited the government from recognizing the legal marriages of same-sex couples for purposes of federal programs and benefits.
Kennedy described DOMA, which was enacted in 1996 by a viciously anti-gay Congress, as a blatant effort to demean the lives and relationships of same-sex couples. In his words, “[t]he avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. . . . 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.”
Laws that aim to stigmatize LGBT people in this way, Kennedy continued, are fundamentally incompatible with basic constitutional guarantees of liberty and equality: “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects. . . . And it humiliates tens of thousands of children now being raised by same-sex couples.” The Constitution, he concluded, “withdraws from Government the power to degrade or demean in the way this law does.”
In the Proposition 8 case, the Court concluded that the proponents of the measure did not have the legal authority to appeal U.S. District Judge Vaughn Walker’s 2010 decision striking it down.
The Court relied on a legal doctrine known as “standing,” which says that only people who are directly affected by a court decision can appeal it. The Court concluded that the proponents of Proposition 8 were not harmed or affected by Judge Walker’s decision striking down Proposition 8.
Since the state officials responsible for defending Proposition 8 in court decided not to appeal Judge Walker’s ruling, the Supreme Court’s decision means Walker’s opinion will become the final decision in the case, and same-sex couples will again be able to marry in California.
With the addition of California, there are now 13 states, plus the District of Columbia and four Native American tribal nations, that allow same-sex couples to marry. With DOMA Section 3 gone, those couples’ marriages will be fully respected by the federal government. They will have the right to apply for Social Security spousal benefits, file joint tax returns, and have their marriages treated the same as any other marriage.
That leaves 37 states (and all other United States territories) where same-sex couples continue—for now—to be denied the freedom to marry.
A few additional states are on track to join the ranks of freedom-to-marry states in the coming months. But even then, a majority of states will continue to deny their citizens the ability to marry a same-sex partner, at least in the short term.
While some, but not all, federal benefits should be available to same-sex couples from those 37 states who get married in another state, couples living in states that do not respect their marriages are likely to find that they still have what Justice Ruth Bader Ginsburg termed “skim-milk marriages.” (For an explanation of why some federal benefits may not be available to married couples living in states that do not allow same-sex couples to marry, see this FAQ.)
The logic of Justice Kennedy’s opinion in the DOMA case means that there is no justification for states that do not currently permit same-sex couples to marry to refuse to respect the legal marriages of same-sex couples living within their borders—or for the federal government to withhold some benefits from them.
It is no less demeaning to LGBT people for states to treat their marriages as a legal nullity than it was for Congress to do so in 1996. Justice Kennedy’s recognition that fundamental constitutional principles forbid such legal denigration of LGBT people marks the path forward toward achieving equal respect for the marriages of same-sex couples in every state.
These historic decisions greatly clarify the work that lies ahead of us in achieving full recognition for the relationships of LGBT people. Legal challenges are already underway in Hawaii, Nevada, New Mexico, Utah and other states. It is only a matter of time—likely within the next few years—before another case reaches the Supreme Court that will resolve once and for all whether these demeaning and stigmatizing state marriage bans will be struck down as a violation of the fundamental constitutional principles that animated today’s decisions.
If the Supreme Court meant what it said today, the answer to that question is clear: the liberty and equality enshrined in the Constitution require both the federal government and every state to respect same-sex couples’ freedom to marry.