The Supreme Court handed gay rights supporters the historic victories they were seeking in a pair of narrowly constructed decisions Wednesday, but stopped short of declaring same sex marriage constitutional.
The court decided 5-4, with Justice Anthony Kennedy, a moderate conservative appointed to the bench by President Ronald Reagan, joining the four liberal justices, that the 1996 federal law signed by President Bill Clinton barring the extension of benefits to married gay couples was unconstitutional.
In the case regarding the constitutionality of a popularly passed gay marriage ban in California, the court decided 5-4 that those appealing a lower court decision that overturned the Proposition 8 ban did not have the legal standing to do so. The decision, written by Chief Justice John Roberts with the support of the court's liberal bloc, in effect legalizes gay marriage in California again.
Kennedy wrote in his majority opinion in the DOMA case that it denied state-sanctioned gay couples equal protection under the law.
"DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment," Kennedy said. "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages."
The net effect of the decision is that people married in the 12 states and District of Columbia which official sanction gay marriage are entitled to federal benefits, including Social Security, and are subject to the more than 1,000 federal regulations that refer to marriage.
But the court decision does not serve to legalize gay marriage across the country or make illegal bans on gay marriage which exist in more than 35 states.
"When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity and protection of the class in their own community," Kennedy wrote. "DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage."
Litigation is expected to follow the decision, likely centering on the rights of gay couples who marry legally in one state and move to another state that does not sanction gay marriage. This ruling makes it unclear whether or not they would be eligible for federal benefits. DOMA had also allowed states to not recognize gay marriages sanctioned in other states, something that may also now be challenged in court. Likewise, opponents of gay marriage will likely also seek to find legal recourse to further their cause.
Roberts, who wrote the majority opinion in the California case, said the people seeking legal recourse did not meet the standards necessary to. The state itself declined to challenge the lower court ruling and the case was brought by private parties.
"For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue," he said. "That party must also have "standing," which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit."
That finding left the court an opening to not weigh in on whether or not gay marriage violates the Constitution, something legal experts expected them to avoid. While the Roberts court has decided several consequential cases in recent years, including last year's health care law, many of the decisions have been narrow in nature and carefully crafted, rather than broad and sweeping. Roberts has shown himself to be more concerned with forging practical coalitions than bonding exclusively with the other conservatives on the court.
Public opinion has shifted rapidly on the gay marriage issue in recent years. In May, a Gallup poll showed 53 percent of the public thinks gay marriage should be legal compared with just 44 percent who felt the same three years ago. More and more states have also approved of same sex marriage, first in Massachusetts where courts led the way and most recently in Maine, Maryland and Washington which became the first states to pass gay marriage by a direct vote of the public.