A giant step forward on the path to marriage equality

The News TribuneJune 27, 2013 

The words “landmark” and “historic” get tossed around a lot after a U.S. Supreme Court decision comes out. Wednesday’s 5-4 ruling overturning a key part of the federal Defense of Marriage Act genuinely deserves those labels.

It signals what anyone who was really paying attention already sensed: That the nation is moving, slowly but inexorably, toward full marriage equality. And Washington state, the first one where citizens voted to make same-sex marriage legal, helped lead the way.

On top of polls showing a majority of Americans now support marriage equality, the fact that same-sex marriages are already taking place in Washington and 11 other states (plus the District of Columbia) may have helped persuade a majority of justices — and most importantly the swing vote of Anthony Kennedy — that DOMA had to go.

That law, passed by Congress in 1996, effectively denied more than 1,100 federal benefits to same-sex spouses, including Social Security, tax and immigration rights, and equal access to military benefits such as health care and housing. It provided a mantle of federal legitimacy to state laws that discriminated against gays and lesbians. Now that mantle has been torn away.

Writing for the majority, Kennedy noted that DOMA created a lesser “second-tier marriage” based on the partners’ sexual orientation that was “unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” This inequality “demeans the couples” and “humiliates tens of thousands of children now being raised by same-sex couples.”

The court had more good news Wednesday for supporters of marriage equality. It declined to reverse lower court rulings that had overturned California Proposition 8, a 2008 voter-approved ban on same-sex marriage that went into effect after an estimated 18,000 couples had gotten married in that state. The decision clears the way for same-sex marriages to resume in California.

Currently, the areas where same-sex marriage is legal represent 18 percent of the U.S. population. When California starts performing same-sex marriages again, that number jumps to 30 percent.

Although marriage equality proponents are excited by DOMA’s demise, they’re understandably disappointed that the court didn’t go a step further and proclaim a right for same-sex couples to marry in all 50 states. If a federal law that discriminates against same-sex couples is unconstitutional, they reasoned, why wouldn’t a state law also be? Although the justices declined to go that far, legal experts believe it’s only a matter of time before the court will have to rule on the broad constitutional question.

So the struggle will continue, state by state, to legalize marriage equality in the 38 that don’t allow it now. But legal experts believe that court challenges to states’ same-sex marriage bans — many of which are enshrined in state constitutions — now will be much easier and more likely to succeed given Wednesday’s decisions.

Demographics will help, too. Young Americans are much more likely to support marriage equality than their elders.

On same-sex marriage, the high court took its cue from a growing number of marriage equality supporters and states like Washington. Its two decisions Wednesday open doors that will never be shut.

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