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Wednesday, June 26, 2013

A win, but not total victory, for same-sex marriage

Pretty much everything that you can say about the Supreme Court's decision on same-sex marriage has been said. I think (as is often the case) scotusblog had the best strict legal analysis, with Suzanne Goldberg noting:

But what is most striking about the opinion, again, is the direct, clear way that the Court seems to understand why DOMA is such an egregious violation of the constitution’s equality guarantee under the Fifth Amendment.   Words like “demean,” “degrade,” and “humiliation” do not appear often in Supreme Court opinions in reference to unconstitutional laws.  Yet the Windsor decision is replete with those words and more.    Indeed, the tone of the opinion almost suggests a sense of offense on the Court’s part:  “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”
 Goldberg also points out that the decision, by implication, could end the federal government's refusal to allow same-sex couples the same immigration rights as opposite-sex couples -- a huge change in immigration policy that wasn't at the top of anyone's discussion points as this case came down.

On Forum this morning, the guests mused over an interesting question: The Court -- for whatever valid legal reasons -- ducked the larger issue on Prop. 8. What would have happened if, say, Attorney General Kamala Harris decided, purely for strategic reasons, to defend the measure and force the Court to decide the case on the merits? Is the US Supreme Court, with Anthony Kennedy (who wrote the DOMA decision) as the swing vote, ready to say that marriage equality is a basic civil right?

We don't know. In a sense, while the ruling is exciting and, combined with the DOMA ruling, groundbreaking and historic, it has a conservative edge. Conservatives hate the idea of broad "standing," which in the past has been a huge issue in environmental law (can the Sierra Club sue to stop oil drilling in Alaska if none of its members own property next to where the drilling will happen?) And the Court conservatives like (generally) the idea of leaving civil rights issues to the states, and the voters.

So for now, the matter of same-sex marriage in California is settled (unless somebody tries to argue that the original federal court ruling overturning Prop. 8 only applies to the plaintiffs and the counties where they live, which won't get far). But in other states, it's going to depend on legislatures and voters. Bad news for gay couples in, say, Texas or Arizona.

Still: Goldberg is right that we've come a very long way:

Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”
And, as I've been arguing for some time now, this was inevitable. In ten years, same-sex marriage will be legal, and common, just about everywhere, and in 25 years, everyone will look back and wonder what was wrong with America, why this was even an issue, and why it took so long.

1 comment:

  1. Tim,

    I'm curious if you know if there could be any ramifications to the DOMA decision in regards to cases like the Sierra Club lawsuit you mentioned. While we're all thrilled that DOMA is dead, the way the court ruled on Prop 8 makes me worried that it will become harder for environmentalists to sue companies for destroying our earth.

    Do you know if there's any validity to my theory or am i just being paranoid.