The Supremes and Marriage
The Battle Goes On

Eric Metaxas
June 27, 2013
Reproduced with Permission

Yesterday, by a 5-4 vote, the Supreme Court, as expected, overturned part of the Defense of Marriage Act, or DOMA.

At the same time the Court declined to rule on California's Proposition 8, citing what lawyers call a "lack of standing."

Here's the bottom line: Same-sex marriage is not the law of the land. The Supreme Court did not issue a Roe v. Wade type of decision for gay marriage. Yes, DOMA is gone. But same-sex marriage in California is still up in the air, and everywhere else the battle goes on.

The DOMA decision, U.S. v. Windsor, involved the estate of a woman who left everything to her same-sex spouse, a marriage recognized by the state of New York. The surviving spouse was barred from claiming the federal estate tax exemption by Section 3 of DOMA, which defines marriage as the union of one man and one woman for federal purposes.

On Wednesday, the Supreme Court upheld the District and Appeals Court's rulings that DOMA was unconstitutional.

Writing for the majority, Justice Anthony Kennedy said that the "history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power," was "the essence" of DOMA.

Its "avowed purpose," he said, was to "impose" a "disadvantage," "separate status" and "stigma" on those who enter into "lawful" marriages recognized by the states they live in.

For long-time BreakPoint listeners, Kennedy's reasoning may bring to mind his opinions in Romer v. Evans. There, he opined that Colorado's exclusion of sexual orientation from civil rights protection was the product of "animus." To which I recall Chuck Colson retorting, in essence, "hogwash." I would use a stronger word--cover your ears--balderdash. There. I've said it.

At any rate, Kennedy cited his opinion in Romer in singling out what he deemed DOMA's "discrimination of an unusual character." Thus, for Kennedy, Section 3 of DOMA serves no "legitimate purpose" that compensates for the way it "disparages" the plaintiff's "personhood and dignity," and is, according to him, unconstitutional.

Now this is important: Section 2 of DOMA was not addressed in this decision. Section 2 states that "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect" to same-sex marriages performed outside of their jurisdiction. That means that states may still refuse to recognize same-sex marriages from other states.

However, as of today, "more than 1,100 federal benefits, rights and burdens linked to marriage status" become equally applicable to same-sex married couples.

That much is clear. What is far from clear is the fate of Proposition 8. The Supreme Court, in Hollingsworth v. Perry, held that the people defending Proposition 8 lacked "standing" to appeal the District Court ruling. Justice Roberts wrote that, unlike the plaintiffs or the state of California, they weren't seeking "a remedy for a personal and tangible harm."

Thus, in essence, the District Court's pro-gay marriage ruling stands. But it's quite possible that it only applies to the original parties in the case. So, when it comes to Proposition 8, there is a lot of litigation and a lot of politicking yet to come.