Well, that's that. After six years of litigation, today the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which prevented the federal government from recognizing same-sex marriages performed in the states, and dismissed the Prop. 8 case on procedural grounds. Because California's governor and attorney general declined to defend the law's constitutionality in court, supporters of the measure took up the task; the justices found they did not have the proper "standing" to do so. Practically, the decision finding the measure unconstitutional stands, but it applies only to California.
Some gay-rights supporters are breathing a sigh of relief. When the star legal team of Ted Olsen and David Boies first filed their challenge to Prop. 8 in 2008, many in the LGBT legal rights movement feared it was too soon to ask the "big question"—do same-sex couples have a constitutional right to marry?—and that the Court would issue a broad ruling finding that discrimination against gay people was fairly easy to justify. Today’s decision amounts to a side-step; this is not the Court’s last word on the same-sex marriage question. But for the moment, the fight is back in the hands of the states.
According to advocates at the major gay-rights organizations, the game plan for winning marriage equality nationwide has long been to achieve a "critical mass" of state recognition for gay marriage, then turn to the federal courts to fill out the rest of the map. While the DOMA ruling is a step forward on the federal level, there remains a patchwork of state laws banning same-sex marriage in place. Gay-rights advocates say the Supreme Court will ultimately have to intervene again. "It's hard to conceive of getting marriage-equality nationwide without court intervention," says Brian Mouton, legal director for the Human Rights Campaign, the country's largest gay rights advocacy organization. "We'll return to the Supreme Court with more states, more public support, and more momentum on our side," adds Evan Wolfson, executive director of Freedom to Marry.
The Court's decision today leaves unanswered the fundamental question of whether bans on same-sex marriage are unconstitutional in the eyes of the country's highest court. A handful of cases in the lower courts are asking it in slightly different ways; they do not contain the escape hatch the Justices used in the Prop. 8 case—a governor who has refused to defend the law. The Ninth Circuit Court of appeals is currently considering a challenge to a same-sex marriage ban in Nevada, which has a constitutional ban on same-sex marriage but offers civil unions, and Hawaii, where gay marriage is banned by statute; the Ninth Circuit has been waiting for the outcome of the Prop. 8 and DOMA cases for guidance on how to rule. Another lawsuit challenges a constitutional ban in Utah, which unlike Nevada does not offer civil unions as an alternative to marriage.
Today's opinion hints that the Justices have little desire to get too far ahead of public opinion. Most likely, the current cases making their way through the legal system will stop at the Supreme Court's door. But given the incoherent legal patchwork the rulings leave in place, it's only a matter of time before the Justices will have to revisit the issue. The question is when. It was 17 years between Bowers v. Hardwick, in which the Court upheld anti-sodomy laws, and Lawrence v. Texas, which reversed Bowers. Twenty years went by between the Court's landmark abortion ruling in Roe v. Wade and Planned Parenthood v. Casey, which addressed the the constitutionality of restrictions on abortion. But with public opinion on gay rights evolving at breakneck speed, gay-rights advocates say the timetable may be shorter.
"If we continue winning freedom to marry in more states and continue building public support, we will be able to go back to the Supreme Court in a matter of years—not decades," says Wolfson. "But we have to do work and have to get lucky."
What Today's Rulings Mean for Gay Couples
For married gay couples, today's decision offers a sliver of hope along with the now-standard generous helping of uncertainty. The federal government must recognize same-sex marriage performed in the states, but states are not required to perform or recognize same-sex marriages. In places like New York, where gay marriage is legal, couples will soon enjoy all the rights and responsibilities as their straight counterparts at both the federal and state levels; the state recognizes same-sex marriage, and by proxy so does the federal government. But the question is trickier in states that do not recognize same-sex marriage. Same-sex couples will still not be able to get married in these states, but what happens if a gay married couple moves from Connecticut to Idaho, which has a constitutional ban on same-sex marriage?
There is no single codified rule that answers that question. "The federal government uses a bunch of 'choice of law' principles to decide whether to respect a marriage," says Camilla Taylor, marriage project director at Lambda Legal. In some domains—Social Security and inheritance, for instance—there are laws governing when the federal government recognizes a marriage. But in most other cases, how the federal government recognizes a marriage is just a matter of historical practice or regulations that can be changed without passing legislation. When it comes to immigration, for instance, the government follows a "place of celebration" rule. This is good news for binational same-sex couples—the DOMA ruling means you can get married in Massachusetts and sponsor your spouse for citizenship regardless of where you move. When it comes to federal taxes, however, the IRS guideline has been to look to one's state of residence in determining marital status. But because this is a matter of practice rather than federal law, the Obama administration can easily change it. "In a majority of circumstances, the federal government can take steps to make sure that people are recognized in the place where a marriage is celebrated," Taylor says. Through changes to regulation, policy clarifications, and executive orders, the Obama administration can make sure the federal government offers the widest recognition possible for same-sex couples following the DOMA decision.
Back to the States
As the DOMA and Prop. 8 cases have wound through the court system, 11 states have moved over to the marriage-equality column. Post-Supreme Court, gay-rights advocates say the strategy continues to be reaching for the low-hanging fruit—states without constitutional bans on same-sex marriage. "The next round is in places where marriage-equality has already been considered," says Michael Cole-Schwartz, the HRC's director of media relations. That includes New Jersey, which already recognizes civil unions and where last year both houses of the legislature passed a gay-marriage law. Republican governor Chris Christie vetoed the law. Gay-rights supporters are currently trying to garner enough support to override a veto. In Illinois, the state Senate passed a gay-marriage bill on Valentine's Day which the governor had promised to sign. But earlier this month, the bill's sponsor in the House tearfully explained he did not have the votes necessary to pass the measure before the legislative session ended. But advocates widely expected it will be enacted into law next year. Hawaii, which also recognizes civil unions, is similarly considering passing legislation to recognize same-sex unions.
National organizations are focusing the bulk of their resources on locking up the rest of the marriage-equality map. But the next phase involves dismantling the 30 constitutional bans on same-sex marriage across the country. Efforts are already underway. On Monday, Democratic legislators in Michigan—part of the first wave of these amendments in 2004—announced a legislative package that would strike the state statute banning same sex marriage and put the constitutional ban to a public vote, which is required to repeal it. With Republicans in control of both houses of the legislature and the governorship, it looks unlikely that the package will make it into law.
But there is a separate grassroots effort to get a repeal on the 2016 ballot. Equality Michigan, the state's main group fighting for marriage rights, has started a campaign to collect 600,000 signatures to put the same-sex marriage on the ballot in 2016. What makes these efforts possible is the about-face in public opinion on same-sex marriage in the span of a few years. "Michigan is just not the place it was in 2004, when we passed the ban on same-sex marriage," says Emily Dievendorf, managing director of Equality Michigan. "Since then, we've had almost a complete flip of support." In 2004, a ban on same-sex marriage passed with 59 percent support, but today 56 percent of Michiganders support same-sex unions—a remarkable 12-point jump just in the last year.
Similar efforts to overturn constitutional amendments are currently underway in Nevada, Texas, and Ohio. To get the constitutional amendment overturned in Nevada, the legislature must vote to repeal the amendment in two consecutive sessions with an intervening election (the intervening election is meant to give voters a chance to give their representatives the boot if they're unhappy with the move), then the vote goes to the public. Lawmakers in both chambers passed a repeal this year and are expected to do the same again in 2014, clearing the way for the public vote in 2015. In Ohio, gay-rights group FreedomOhio is currently collecting signatures to put the question on the 2014 ballot.
In 2004, the Massachusetts Supreme Court decision legalizing gay marriage in the state set off a race against time between opponents and supporters of same-sex marriage. With public opinion shifting quickly against them, organizations like the National Organization for Marriage (NOM), the country's most prominent group opposing gay marriage, sought to lock in legal barriers to same-sex marriage by passing state constitutional amendments defining marriage as union of "one man and one woman." They did so successfully in 30 states. Then came the tipping point: In 2012, voters in Maryland, Washington state, and Minnesota rejected proposed amendments to their constitutions and all legalized same-sex marriage. With 12 states now recognizing same-sex marriage and 30 that ban it via constitutional amendment, what's left is locking up the last few states without marriage amendments and with sufficient public support to pass marriage equality. Then starts the work of dismantling the barriers NOM and its allies put in place.
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