UNBOUNDED joy is a wholly justified reaction to the U.S. Supreme Court’s striking down of a key part of the federal Defense of Marriage Act (DOMA). Appropriately so, but the pursuit of marriage equality continues.
The high court’s 5-4 ruling declared a section of the federal law unconstitutional because it violated the Due Process Clause of the Fifth Amendment.
In the first of two court rulings Wednesday about same-sex marriage, the majority argued the Constitution and legal precedent have left marriage issues to the individual states. In this case, DOMA was seen as a federal contrivance that denied equal protection to a couple whose marriage was legally recognized by New York state.
At issue was a federal estate-tax exemption, but DOMA restrictions turned up in more than 1,100 federal statutes and regulations. The decision is a mix of arguments over the obligations, or not, of the executive branch to defend or challenge a law.
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The majority decision spoke eloquently about the humiliation suffered by children who see the legitimacy of their loving family diminished by a denial of rights.
“The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives,” Justice Anthony Kennedy wrote.
The four dissenters expressed their confusion over why the case was before them. They saw a narrowly defined tax case resolved in a lower court. For Chief Justice John Roberts, the Supreme Court lacked jurisdiction. For Justice Antonin Scalia it was more basic: “There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are.”
The court did not provide an endorsement of same-sex marriage, or its expression in federal law. That falls to the states. Indeed, Roberts’ majority opinion in the California case over Proposition 8, which denied same-sex marriage, echoes his dissent. Roberts and his nonideological 5-4 majority let stand a lower-court ruling that Proposition 8 was unconstitutional.
Roberts said the challenger in the California case did not have legal standing, and in his DOMA dissent he wondered why the decision had reached the high court.
Much about the two rulings was procedural. So for now, same-sex marriage becomes even more of a states-rights issue. States can still refuse to sanction same-sex marriages and refuse to recognize them from other states.
Such is the legal reality, but that also means the changing public attitude about same-sex marriage, and the endorsement of the families they build and maintain, can move ahead.
Washington’s path toward marriage equality took years. The velocity of the national embrace of this change continues to increase. Twelve states and the District of Columbia have made it legal, and one can expect other states to follow.
Removal of a contrived legal impediment that DOMA represented is indeed a triumph. The imperative for change for same-sex couples must continue with access to rights and benefits within the military, and other government benefits.
Same-sex marriages have and deserve that respect in the law.