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A huge step forward for equality — and a promise of more to come

The Supreme Court's decisions today in two cases related to gay marriage represent a tremendous step forward in the quest for equality, and they will provide real and important protections and benefits for millions of families from Maryland to California. Although the court did not rule on the question of whether the Constitution guarantees a right to same-sex marriage, its decision in a case striking down a crucial section of the Defense of Marriage Act is couched in terms of the "equal liberty of persons" and recognizes that the right to marry is a matter of "dignity and status of immense import." Though the court was careful in this instance to limit its argument to states that have affirmatively recognized marriage equality, the reasoning certainly moves us a step closer to the understanding that the right to marriage must be universal.

The first ruling issued by the court, a 5-4 decision written by Justice Anthony Kennedy and joined by the court's liberals, found that Section 3 DOMA, the 1996 law prohibiting the federal government from recognizing same sex marriages, is unconstitutional. The implications in Maryland and 11 other states plus the District of Columbia that recognize marriage equality are profound. More than 1,000 federal laws deal with marriage in one way or another, and this ruling will make same-sex families far more secure by allowing them to file joint tax returns, freely inherit each other's property, receive Social Security survivor benefits and federal pensions, among other protections.

The second ruling, also a 5-4 decision, albeit with an unusual coalition of some of the court's most liberal and conservative members in the majority, dodged the main issue presented by the challenge to California's Proposition 8: whether it or any state law prohibiting gay marriage violated the Constitution's 14th Amendment guarantees of due process and equal protection under the law. The case was an unusual one, in that the original defendants — California's governor and other state and local officials — declined to appeal a federal district court ruling in favor of gay couples who wanted to marry. Instead, a group of proponents of the initial ballot initiative were allowed to appeal. The Supreme Court held that they did not have standing to bring the appeal and remanded the case back to the federal appellate court for dismissal.

The upshot is that same-sex couples in California will soon be able to wed. That means that nearly a third of Americans now live in states where same-sex marriage is legal. It also means that the question of whether the federal Constitution protects marriage equality remains open. A ruling in the opposite direction — certainly a possibility given the makeup of the court, recent shifts in American public opinion notwithstanding — would have been a major setback.

On the contrary, the opinion in the DOMA case hints that a future case seeking to establish the unconstitutionality of gay marriage bans could be successful. Justice Kennedy's opinion turns largely on a state's rights and federalism argument. He says that laws defining marriage have, with few exceptions, been left up to the states since the nation's founding, and thus it is a violation of the Constitution for the federal government to uniquely disfavor a group of people that individual states have chosen to protect.

However, it also makes clear that the decision by the federal government to cast disfavor on same-sex marriages in states that allow them was arbitrary and motivated by nothing more than malice. The DOMA case did not establish a clear answer for how strictly the court must scrutinize laws that discriminate against gays and lesbians, but it also gave no credence to arguments by the law's proponents that Congress acted rationally to enact it because of its interest in establishing uniformity for federal regulations or promoting opposite-sex families. "The principal purpose is to impose inequality, not for other reasons like government efficiency," Justice Kennedy wrote. "Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their state, but not other couples, of both rights and responsibilities." Although the majority in this case quite self-consciously stops short of doing so, it's not much of a leap to apply that same logic to laws in the 37 states that do not presently recognize gay marriage.

For now, that fight will continue in state legislatures, state courts and at the ballot box. But with every passing victory, it becomes likelier that the court will one day in the not so distant future recognize the need for true equality in every state in the union.

Copyright © 2015, CT Now
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