By striking down part of the federal Defense of Marriage Act and allowing gay marriage in California, justices suggest that a constitutional endorsement may be next.
In this country, there is an “evolving understanding of the meaning of equality,” said Justice Anthony M. Kennedy, a growing recognition that the public now believes it is unjust to deny equal rights to “same-sex couples who wished to be married.”
Kennedy’s ruling struck down, by a 5-to-4 vote, the federal marriage law, which had denied legal recognition of same-sex marriages, even in states where such marriages are legal. Minutes later, the court by another 5-4 decision threw out the appeal brought by the private sponsors of California’s Proposition 8, the ballot measure that limited marriage to a man and a woman.
The language of the two decisions suggests that a constitutional ruling giving all gays and lesbians a right to marry is not far off.
The ruling on the federal law was a victory with practical consequences for more than 100,000 gays and lesbians who are already legally married, including Edith Windsor, an 83-year-old New York widow who brought the case. She sued to challenge the federal law after Thea Spyer, her female spouse, died. Under the decision, the Internal Revenue Service must refund $363,000 in estate taxes, plus interest, assessed on the property they owned together.
“If I had to survive Thea, what a glorious way to do it,” said Windsor, who lived with Spyer for more than 40 years. The court’s decision will have ramifications for people of all ages, she said. “I think it’s the end of teenagers falling in love and not thinking there’s a future for them.”
Now, the court said, same-sex, legally married couples like Windsor and Spyer are entitled to full equality under federal law. Their unions may not be deemed “less worthy” or “treated as second-class marriages,” it said.
Kennedy maintained that the court was not ruling on whether gay marriage is a constitutional right, but his chief adversary — Justice Antonin Scalia — said he was not buying it.
“No one should be fooled,” Scalia said. “It is just a matter of listening and waiting for the other shoe to drop.” If the court’s majority sees bans on same-sex marriage as an issue of unjust discrimination, it will not be long before those laws are struck down, he said.
The decision means that a married same-sex couple in Massachusetts may file a federal tax return as a married couple. But if the couple were to move to Nebraska or Utah, those states would not have to recognize them as married. That part of the federal law was not challenged in the court case. And questions remain about whether they would still be eligible for full federal benefits while living in states that do not recognize their marriage.
The ruling on Proposition 8, although entirely procedural, set off celebrations in California. It had the effect of upholding the decision of U.S. District Judge Vaughn Walker in San Francisco, who struck down the proposition in 2010 and ruled for gay marriage.
Chief Justice John G. Roberts Jr., a conservative who is devoted to proper legal procedure, wrote the opinion that effectively upheld Walker’s sweepingly liberal opinion. It means California almost certainly will become the 13th state where gay marriage is legal.
As Roberts saw it, two gay couples had sued, seeking a right to marriage as a matter of equal rights. In Walker’s court, “they had won — and state officials chose not to appeal,” Roberts said. At that point, the case was over because the sponsors of the ballot measure are private citizens who do not speak for the state, Roberts ruled.
While the four liberal justices had nothing to say in either case, the outcome was exactly what they had sought. Justice Ruth Bader Ginsburg, a veteran of the women’s rights movement, had spoken of the wisdom of taking a steady, step-by-step approach toward winning full equality under the law; she sought rulings that would advance the cause of gay rights without going too far, too fast.
Ginsburg joined Kennedy’s opinion to strike down the federal law, as did Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. And Ginsburg, Kagan and Breyer joined with the chief justice and Scalia to throw out the defense of Proposition 8 and restore gay marriage to California. Kennedy dissented, saying Proposition 8 sponsors did have standing to appeal.
The decision voiding part of the Defense of Marriage Act highlights how much the nation has changed on gay rights in two decades. In 1996, the fear that one state might allow “homosexual couples” to marry prompted a move in Congress to erect a legal shield to what its sponsors called this “truly radical” idea from spreading to other states. The bill passed with a strong bipartisan majority and was signed into law by President Clinton.
In 2003, Massachusetts became the first state to allow gays and lesbians to marry, the result of a state Supreme Court ruling.
When same-sex marriages resume California, 13 states accounting for about 30% of the nation’s population will allow such unions.
But this legal, social and cultural battle is not over. Of the 37 states that forbid same-sex marriage, 29 have state constitutional measures limiting marriage to a man and a woman. That means neither state judges nor state lawmakers can easily change the law.
And social conservatives said they were determined to fight against any change.
“Make no mistake about it: The legal battle over the definition of marriage is in reality a battle over whether America will be completely ripped away from its Judeo-Christian foundation,” said Gary Bauer, president of American Values. “While the media continue to act as if this is only about marriage rights, it is ultimately a battle over religious liberty. Today’s rulings guarantee that it will continue to rage.”
The battle is likely to continue within the high court as well.
Chief Justice Roberts joined with Scalia and Justices Samuel A. Alito Jr. and Clarence Thomas in saying the Defense of Marriage Act should have been upheld and that, for now, there is no legal right to gay marriage.
“We may in the future have to resolve challenges to state marriage definitions,” Roberts said. Until then, states “may continue to utilize the traditional definition of marriage.”
Alito and Thomas said the issue should be decided in each state. “The Constitution simply does not speak to the issue of same-sex marriage,” Alito wrote.
As usual, Scalia had the most fiery dissent. He slammed the majority for “invalidating this democratically adopted legislation,” referring to the Defense of Marriage Act. “That is jaw dropping. It is an assertion of judicial supremacy over the people’s representatives in Congress and the Executive,” he said, a day after he had joined a 5-4 majority to strike down a key part of the Voting Rights Act.