Though the U.S. Supreme Court declared a key piece of the federal Defense of Marriage Act unconstitutional this week, and in a related case cleared the way for same-sex marriage in California, the court passed on the opportunity to decide whether same-sex couples enjoy a constitutional right to marry. We wish the court had shown more nerve, but we’re confident it’s only a matter of time before all Americans enjoy equal marriage rights.
Unfortunately until then, Texas and more than 30 other states can continue to ban same-sex marriages. Still, Wednesday’s rulings should be celebrated. They represent two steps forward on America’s long journey toward equal rights for everyone and could encourage a few states to reconsider their discriminatory stances on gay marriage.
American attitudes toward same-sex marriage have shifted dramatically the past few years, and a solid majority now supports marriage equality. A fierce reaction from a vocal minority would have met a court ruling prohibiting bans on same-sex marriage, no doubt. But it’s likely most heterosexual Americans, who know their own marriages are unaffected by someone else’s, would have greeted a sweeping ruling on same-sex marriage with a giant shrug.
The court’s opinions were issued on the 10th anniversary of its 6-3 decision in Lawrence v. Texas. That landmark ruling declared state laws banning sodomy unconstitutional and extended to gay couples the right to have consensual sex without fear of prosecution. Wednesday’s decisions join Lawrence as legal milestones for gay and lesbian couples.
“There is significant change in the way the court is reasoning about gay people,” Cary Franklin, a law professor at the University of Texas, told the American-Statesman’s Juan Castillo. “It’s saying that treating gay people and straight people differently is constitutionally suspect in a way that I think over time will raise questions in the way that Texas regulates same-sex couples.”
A Republican-led Congress passed the Defense of Marriage Act in 1996, an election year, and President Bill Clinton signed it into law. The Supreme Court’s decision striking down DOMA, as the act is called, broke along predictable ideological lines, with Justice Anthony Kennedy playing his usual role as the decisive swing vote. The court said federal law must extend federal benefits to gay couples who are married in states where same-sex marriage is allowed and treat them the same as opposite-sex couples.
The court’s decision affects only federal benefits, but it could encourage other entities to expand the benefits they offer. Private businesses have provided domestic partner benefits for years. Local governments generally have trailed the private sector but Austin and other Texas cities and counties also offer health insurance benefits to domestic partners, as does the Pflugerville school district. Friday, the Austin school district made the disappointing decision not to follow Pflugerville’s lead.
In considering California’s ban on same-sex marriage the court limited itself to whether the supporters of the ban had “standing” to defend it after a lower federal court declared it unconstitutional. Because only the state of California has the power to enforce the law, the authority of appealing the lower court’s ruling to the Supreme Court rested with it. But California agreed the law was unconstitutional and did not pursue an appeal. So the law’s sponsors filed an appeal but the Supreme Court said they lacked the power to do so.
The ruling frees California to approve same-sex marriages but has no effect on Texas or other states. They can continue to do what they want.
We understand the court’s deference to the states in both the DOMA and California rulings. Marriage is a legal arrangement sanctioned by the states. Couples can choose to celebrate the arrangement with a church wedding, but religion doesn’t make a marriage legal. States do.
But by stopping short of declaring bans on same-sex marriage unconstitutional, the court left hanging many questions that get to the heart of why marriage rights should be nationally applied. If a same-sex couple legally married in California moves to Texas, are they suddenly no longer married? What does that mean for sharing property rights or child custody, or for the ability of one spouse in a same-sex marriage to make medical and legal decisions for another? A broad constitutional ruling would force states to treat all couples equally.
Thursday, the Supreme Court refused to take up two new same-sex cases when it reconvenes in October. Court observers thought one of the two cases, out of Nevada, might have been the one to lead the court to a constitutional decision on same-sex marriage, but the possibility of such a decision now will have to wait until another term.
Efforts to deny groups of Americans equal rights push against the pursuit of equality, but equality is a powerful idea. It has historical force in this country. Someday the wait for marriage equality will end.