As I correctly predicted in an earlier post, the U.S. Supreme Court struck down Section Three of the Defense of Marriage Act (DOMA) in U.S. v. Windsor, giving federal recognition to the gay couples already legally married. It also ruled narrowly in Hollingsworth v. Perry, impacting only gay couples in California. While these are both significant steps toward nationwide legalization of gay marriage, there are still many gay couples without marriage rights. As of August 1, gay marriage will be legal in 13 states and the District of Columbia, and state-sanctioned gay marriages will be recognized by the federal government just as heterosexual marriages are. There are currently six other states that provide some legal recognition of gay couples: four offer civil unions and two offer domestic partnerships.
Here is what the Court left unresolved:
- Is Section Two of DOMA, which gives states the right to refuse to recognize gay marriages legally attained in other states, unconstitutional?
- Now that the federal government will be recognizing gay marriages, does this make civil unions and domestic partnerships unconstitutional?
- Are the bans on gay marriage in effect in 35 states (29 by state constitutional amendment, 6 by state DOMA statute) unconstitutional?
The marriage equality movement will likely proceed to address all three of these unresolved issues with court challenges in both state and federal courts. Some commentators are now saying that the next logical legal battle is to attack Section Two of DOMA, since the Court has shown a willingness to dismantle that federal statute and since Section Two now creates an illogical situation where a gay couple could marry in one state, then relocate to a state that does not issue or recognize gay marriage licenses, and still be recognized by the federal government as married. While this is an important issue, it will not increase the total number of gay marriage licenses issued. Instead, like Windsor, it will merely give more rights to couples who already have valid marriage licenses.
Now that federal recognition has been achieved, the next key legal battle is to transform the civil unions and domestic partnerships into marriages by using the Windsor case as precedent in state courts. Since the federal government will be honoring gay marriages but not civil unions or domestic partnerships, these latter entities are not equal to marriage, even if they contain the same bundle of state rights that heterosexual married couples receive. This violates the same liberty principle of equal protection that the court applied to gay couples in Windsor, though at the state level those rights are embodied in the Fourteenth Amendment, rather than the Fifth.
If resources permit, it would be wise for marriage-equality advocates to also try to reverse some of the state bans that remain, beginning with the six states with only statutory bans (since these are easier to reverse than state constitutional amendments). This approach will move the country more rapidly toward the tipping point, where at least 19 states permit gay marriage — more states than had decriminalized abortion at the time the Court decided Roe v. Wade. Once that point is reached, the Supreme Court will agree to hear a case challenging the constitutionality of any remaining state law bans.