The Supreme Court Wednesday struck down the Defense of Marriage Act, ruling that the government can no longer deny federal benefits to legally-married same-sex couples. It also ruled on California's Proposition 8, declaring that the law's proponents didn't have legal standing to appeal a lower court overruling the ban, effectively allowing gay marriage once again in California.
The blogosphere reacts to the pair of decisions and what they both mean for the future of gay marriage in the United States:
Writing at the American Conservative, Daniel McCarthy said the repeal of DOMA will leave the overall question of the legality of same-sex marriage to the states:
In sum, the Supreme Court has advanced same-sex marriage in a gradualist manner that basically tracks public opinion, which is also moving in that direction, the relative popularity of DOMA itself notwithstanding. With same-sex marriages now set to resume in California, about 30 percent of Americans live in states where SSM is legal. Gay marriage isn't a change that's coming in the future, depending on how battles in the courts and at the ballot box turn out. It's a fait accompli. The bigger question isn't whether more states will recognize same-sex marriage—let alone whether there's much possibility of rollback—but on what the terms of victory of the SSM side is going to be consolidated. Conservatives have a different battle to fight, psychologically as well as legally, to preserve religious liberty and ensure that this revolution already made doesn't enter a more radical phase. High-strung right-wingers who say, for example,that the country might as well embrace polygamy if it's going to have same-sex marriage are not doing themselves any favors. More seriously, this would be a good time for conservatives to take supporters of SSM at their word and insist on stronger cultural as well as legal affirmations of monogamy for everyone.
James Joyner of Outside the Beltway said the language of the opinion made the decision more sweeping than expected:
Justice Kennedy's opinion in Windsor is far more sweeping than I would have predicted. I was expecting DOMA to be struck down on the basis on that it's a state issue and that the Full Faith and Credit Clause trumped any statute. That would not only have been largely uncontroversial but have had no practical impact, since the Obama administration isn't enforcing the law anyway.
Instead, the five justices in the majority have made sexual orientation a full-fledged protected class under the 5th (and presumably 14th) Amendment. That is indeed truly historic.
Ed Morrissey of Hot Air said the ruling in Prop 8 is more troublesome than that of DOMA:
The voters in California amended the state constitution by referendum legally, to define a legitimate government policy regarding the recognition of marriage. The court is making the case that this is a matter for California to settle, not the federal courts, and there is a very good case to make there. However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn't like the outcome. That to me is a more dangerous outcome than a precedent-setting decision on standing.
Tony Campbell of The Moderate Voice said that, as a social conservative, the court's decision on DOMA goes against his support of traditional marriage, but he still believed the decision was the right one:
Within the boundaries of our political liberty as a sovereign nation resides the individual freedom of the citizen. The first ten amendments to the document expresses the freedoms of citizens and the limitations of government. Basically, as long as the freedom of one individual does not encroach on the freedom of any other citizen, a citizen within the boundaries of our shared liberty can act as he or she chooses. Individual freedom and responsibility are core ideals of the Republican party and Conservatism. For the record, I am against same sex marriages (for reasons of personal belief). That being said, I believe that to ask the government to limit the freedom of the individual is misguided and has caused our party to be marginalized as bigots, homophobes and insensitive.
To use government to manipulate individual behavior on social issues is no different than when liberals use government programs to create and maintain a dependent class of people. When the left uses these programs to help people, in reality, they are limiting individual freedom by replacing the drive to succeed with the complacency of necessity.
We, as conservatives, has an obligation to advance individual freedom – in whatever form it takes within a society based upon liberty. It is more important for those ideals to be championed when the freedom in question goes against our personal beliefs.
Chris Cillizza of The Fix said both decisions will give more momentum to pro-gay marriage advocates around the country:
Had the Court upheld DOMA and/or overturned the Prop. 8 decision by the lower courts, it would have almost certainly emboldened the forces pushing for marriage to remain as between one man and one woman. That movement was vibrant in the mid 2000s — remember that in 2004 the presence of a gay marriage ban on the ballot in 11 states was widely credited with turning out GOP voters and ensuring President Bush's re-election victory — but has faded of late. (Three states legalized same sex marriage via ballot initiative in 2012.)
But, the Court didn't do that — and, in fact, in regards DOMA, they did the opposite. What that means, from a practical political perspective, is that the movement toward the legalization of gay marriage that we have seen in public opinion polls in recent years will either hold steady or perhaps even increase.
The truth is that even before the Court handed down its rulings on DOMA and Prop. 8 today, the writing was on the political wall. It's why a number of prominent Republican political operatives signed on to an amicus brief in support of gay marriage during the Prop. 8 arguments before the Supreme Court.
Today's ruling will only further that movement as states — both legislatively and through the electoral process — may, emboldened by the Court's decision, move to legalize gay marriage.
John Marshall at Talking Points Memo points out an important consequence of the DOMA decision in the context of the immigration bill under consideration in the Senate:
One threat haunting the immigration reform legislative debate was that the bipartisan coalition supporting comprehensive immigration reform would come apart over providing equal rights to same-sex married couples in the context of US immigration law. The DOMA decision largely ends that debate since the federal government is no longer able to discriminate between opposite sex and same sex couples married in US states where it is legal.
The DOMA ruling will also have an impact on health care legislation and same-sex couples' ability to access federal health benefits, writes Tara Culp-Ressler at ThinkProgress:
Essentially, when Americans get health care through their job, their employer pays part of the premium for that insurance plan. Many of those Americans may opt for a family plan that also covers their spouse. Under the current federal tax code, Americans can't be taxed on the amount of money that their employer puts toward covering the cost of their spouse's premium. But, while DOMA stood, the federal government couldn't count same-sex couples as part of that rule. LGBT couples who were legally married ended up being taxed more for their health care than straight couples who were legally married. Now that DOMA is gone, some married same-sex couples won't pay the federal government more for sharing the same health plan.
DOMA's demise may indirectly affect LGBT individuals' ability to afford health benefits, too. Once same-sex couples aren't denied the same types of other federal tax benefits and worker protections that they were under DOMA, their financial stability will probably be improved. The current discrimination against LGBT people is one of the biggest reasons that they are disproportionately likely to be low-income, unemployed, and uninsured.
Dana Loesch of Red State said that the ruling is a victory for those advocating a limited federal government:
Big government is a symptom of apathetic people. If big government is needed to define marriage then the people who make up the church, and I say this as one of them, have not done their best to God to live and evangelize their faith. Where we fail government intercedes.
I view today's ruling as a narrow second chance. The government has, for now, refrained from issuing a blanket statement against the institution of marriage, reverting instead to state jurisdiction. The bottom line is that today's ruling was once again a failure of Democrats's big government. Democrats campaigned on DOMA, championed it, Clinton signed it. The party who filibustered the Civil Rights Act will say they "evolved," which is code for "waffle." If after today Democrats want to finally agree with conservatives that big government is bad, I'm sure we'd accept their admission of error.
Greg Sargent at the Plum Line said the language of equality used in the decision will change the way same-sex marriage is addressed across the country:
What happened today is that a whole new legal framework has been created within which state level battles over marriage equality will now unfold. It's not an overstatement to say that the language in today's decision may help put state laws banning gay marriage on the path to extinction around the country.
With gay marriage already legal in around a dozen other states plus Washington, D.C., the short term upshot of the two decisions is that states that are home to over one quarter of the U.S. population have now legalized gay marriage, according to prominent gay rights lawyer Richard Socarides. What's more, all of those marriages now have federal recognition.
- Read Pat Garofalo: Supreme Court Conservative Hypocrisy on DOMA and Voting Rights Act
- Read Robert Schlesinger: Supreme Court's DOMA Gay Marriage Decision Makes Our Union More Perfect
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