WASHINGTON — A closely divided Supreme Court Wednesday pushed the nation solidly toward a future where same-sex couples across the nation will have the right to marry, striking down the federal ban on recognizing state-granted same-sex couples' marriages and keeping in place a trial-court ruling striking down California's Proposition 8 marriage amendment.
Justice Anthony Kennedy continued a nearly two-decade history of siding with gay and lesbian Americans, writing the court's 5–4 opinion striking down Section 3 of the Defense of Marriage Act.
"DOMA seeks to injure the very class New York seeks to protect," Kennedy wrote of Edith Windsor's challenge to the 1996 law. "By doing so it violates basic due process and equal protection principles applicable to the Federal Government."
Kennedy reached that conclusion by applying his previous opinions about gay rights to Windsor's case, upholding her victory at the trial court and on appeal. Windsor had sued because she was forced to pay a federal estate-tax bill after the death of her wife, Thea Spyer, that a straight married couple would not need to pay.
With Section 3 struck down, the federal government will begin recognizing the marriages of same-sex couples legally married in their home states, although questions remain about the rights of legally married same-sex couples who live in states that don't recognize their marriages.
For his part, President Obama has already said, "I've directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly."
How did Kennedy — joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — get there?
First, he noted that the court could hear the case, despite the fact that the Obama administration agrees with Windsor that DOMA should be found unconstitutional.
"The Government's position — agreeing with Windsor's legal contention but refusing to give it effect — meant that there was a justiciable controversy between the parties," Kennedy wrote.
After discussing the passage of DOMA and evolution of same-sex couples' marriage rights, Kennedy noted, "In order to assess the validity of [Congress' passage of DOMA] it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition."
The court concluded that "the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations." As such, Kennedy wrote, "What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect."
And though Chief Justice John Roberts claimed in his dissent that it is "undeniable" that the court's opinion is "based on federalism," Kennedy himself takes aim squarely at the equal protection elements of the case — concerns that formed the basis of his earlier gay-rights opinions.
"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 more than an incidental effect of the federal statute. It was its essence," Kennedy wrote.
In dismissing the appeal of Proposition 8 because the court found that the proponents of the 2008 initiative had no legal right, or standing, to appeal the trial-court decision striking it down in 2010, a different combination of justices took a modest approach — but one that nonetheless will move forward the landscape for advocates of marriage equality.
Although some lawyers and supporters of the proponents themselves have argued that the trial-court ruling should be limited to the two same-sex couples who brought the lawsuit, Chief Justice Roberts, in writing the 5-4 opinion, noted that the trial-court opinion "permanently enjoin[s] the California officials named as defendants from enforcing the law, and 'direct[s] the official defendants that all persons under their control or supervision' shall not enforce it."
That outcome ends Proposition 8 across the state and means same-sex couples should soon be able to marry once again in California.
California Gov. Jerry Brown, who declined to defend the law as attorney general of the state or appeal the trial-court decision striking it down, appears ready to do so, already issuing a statement saying that "the U.S. Supreme Court today has made same-sex marriage a reality in California."
There is a slight time lag of about a month until the decision of the Supreme Court becomes finalized and the trial-court judgment would go into effect, but, Brown said, "I have directed the California Department of Public Health to advise the state's counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms" that the hold on the trial-court judgment going into effect is lifted.
For Chad Griffin, the man who began the American Foundation for Equal Rights and now runs the Human Rights Campaign, the next steps are clear.
In front of the Supreme Court building Wednesday, Griffin told the crowd assembled, "So, today, let's set a new goal. Within five years, we will bring marriage equality to all 50 states in the U.S."
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