Supreme Court gives big boost to gay marriage

1:06 PM, Jun 26, 2013   |    comments
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 PDF Document: UnitedStates v Windsor

WASHINGTON -- A sharply divided Supreme Court gave a double-barreled boost to gay and lesbian rights Wednesday, upholding a California ruling that legalized same-sex marriage in the nation's largest state and striking down a federal law that denied benefits to those already married in 12 states.

The dual decisions, rendered by a coalition of liberal and some conservative justices, give the high court's mixed blessing to a gay-marriage movement that has gained momentum in the past decade and now stands on the threshold of full equality.

The court lifted a 5-year-old ban on same-sex marriage in California by declaring that the ban's backers lacked standing to challenge lower court rulings against it. As a result, gays and lesbians almost certainly will be able to marry again in California.

That decision, written by Chief Justice John Roberts, was 5-4 with Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan in the majority. Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor dissented.

And the justices declared unconstitutional the 17-year-old Defense of Marriage Act, a law that denied federal benefits to gays and lesbians legally married in a dozen states, from Maine to Washington, and the District of Columbia.

That ruling was pure Kennedy, the court's swing vote, joined by the four liberal justices. The four other conservatives dissented -- Scalia in angry fashion from the bench.

"The avowed purpose" of DOMA, Kennedy said, was "to impose a disadvantage, a separate status, and so a stigma" on gays and lesbians seeking to wed.

Scalia accused the majority of sending this message: "'Hate your neighbor, or come along with us''"

"We might have let the people decide," he said.

Taken together, the rulings represent a major step forward for marriage equality and a huge setback for defenders of traditional marriage between only men and women. But 36 states still ban same-sex marriage, and the high court's ruling in the California case doesn't extend marriage rights to gays and lesbians elsewhere.

Several of the court's most conservative justices dissented from the rulings, arguing that backers of California's Proposition 8 ban deserved their day in court and that the federal government can refuse to recognize gay marriage -- something they noted was newer than cell phones and the Internet.

The court's majority stopped far short of a more dramatic ruling -- that the Constitution gives gay and lesbian couples nationwide the right to marry.

The two decisions were greeted with celebration among gay rights advocates and dread by religious and social conservatives.


The California Supreme Court cleared the way for gay marriages four years ago, and quickly about 18,000 couples tied the knot. That led opponents of same-sex marriage to demand a voter referendum outlawing gay marriage, which passed narrowly in November 2008.

The original lawsuit against Proposition 8, filed by a gay couple and a lesbian couple, has prevailed at both federal courts leading to the Supreme Court. The district court said the law violated the Constitution's equal protection clause because it was "premised on the belief that same-sex couples simply are not as good as opposite-sex couples." The appeals court ruled more narrowly that voters could not take away a right previously granted to the state's gays and lesbians.

Since then, after a string of state bans on gay marriage, a half dozen states have legalized the practice: Maine, Maryland, Washington, Delaware, Rhode Island and Minnesota. Illinois could be next, possibly followed in the future by New Jersey, Oregon and Hawaii.

Rather than remaining on the sidelines in the California debate, the Obama administration came out forcefully this year against the ban and helped to argue the case in court. It singled out California and seven other states that allow civil unions or domestic partnerships, arguing they cannot deny the title of marriage.

Making the case for California's gay marriage proponents was Theodore Olson, the conservative former U.S. solicitor general who teamed up with liberal David Boies on the case. They were representing two couples: Kris Perry and Sandy Stier, lesbian parents of four sons, and Jeff Zarrillo and Paul Katami, a gay couple who want to marry and raise a family.

Arguing in support of Proposition 8 was Charles Cooper, the attorney representing the original proponents of the referendum who contend that marriage is based upon producing and raising children by a mother and father. They say forcing opponents to recognize same-sex marriages would infringe on their religious beliefs. And they say states and voters should be left alone to make their own decisions.


The Defense of Marriage Act has two main sections, only one of which - defining marriage in federal laws as between a man and a woman - is being contested. Because of it, benefits and programs enjoyed by opposite-sex couples aren't available to gays and lesbians under federal employment, health, tax and other laws. The other provision shields states from having to recognize gay marriages from other states.

Attorney General Eric Holder announced in 2011 that the Obama administration considered DOMA unconstitutional and no longer would defend it in court. Into the breach stepped House Republicans, who argued - to no avail in lower courts - that the law saves needed federal resources and ensures they are distributed equally among the states.

At last count, there were 1,138 provisions in federal laws that listed marital status as a factor in determining benefits, rights and privileges. The list, prepared by the Government Accountability Office, was most recently updated in 2003.

The most prevalent are tax laws. Despite their marriage certificates, gay and lesbian spouses cannot get tax-free health benefits from their employers. That alone costs them about $1,000 a year on average, says Gary Gates, a demographer who studies gay and lesbian trends at the UCLA School of Law's Williams Institute.

Gays and lesbians can't file joint federal tax returns, as heterosexual married couples can, which often saves families thousands of dollars. If gays or lesbians divorce, any alimony is subject to taxation, while for opposite-sex couples, it's tax-free. And when a spouse dies, the widow or widower is liable for inheritance taxes; heterosexual couples enjoy a marital deduction.

That estate tax problem is what prompted Edie Windsor, 83, to file her lawsuit. She stands to win back the $363,000 she paid in 2009 on the estate of her deceased spouse, Thea Spyer - a tax she would not have owed if their marriage was recognized by the federal government.

A few dozen other same-sex married couples, widows and widowers also stand to gain because they had filed legal challenges or tax claims that have not expired, says Mary Bonauto, civil rights project director at Gay & Lesbian Advocates & Defenders. For all other same-sex married couples, the impact of the court's ruling would be prospective, not retroactive.


Richard Wolf and Brad Heath, USA TODAY

Gannett/USA Today

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