SCOTUS decides gay marriage, or does it?

DOMA Unconstitutional by 5-4 decision, update to follow. Decision based on equal liberty of the 5th. Though it applies only to the lawful marriages of the type specifically included in the case, the language used will be repeated in further cases. “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty” and “[t]he federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.”

This was couched in federalism terms; if you give the right to decide who can marry to the states, you cannot then invalidate the marriages they decide to allow by federal law. However, the language is far reaching.


Also by a 5-4 decision, but with a wildly different makeup, the Court decides a private party does not have standing to bring an appeal in the Proposition 8 situation (California declined to defend the law beyond the trial level). The Court then vacated the 9th Circuit’s decision and instructed them to enter an order dismissing the appeal. This leaves the trial court’s decision invalidating the proposition as the final judgment.





  1. So interesting question – say Georgia gets a Democratic Governor/Attorney General, and someone files suit against Georgia’s gay marriage ban in federal court, and the federal court overturns it, maybe because the Gov/AG decide not to defend it, and then say we’re not appealing it.

    Would that be all that is required?

        • Stefan says:

          Well, mostly. I agree that gay marriage is essentially the law in California now, but technically that decision is limited to the parties in the case, but among those parties were the Governor and the State AG, so…

    • griftdrift says:

      Or do you mean the district court would be upheld because no standing like California and therefore de facto it would be overturned? That might work.

      • Yeah are they basically saying if the state doesn’t want to defend it, and it gets struck down, a private party (who would surely step up here) doesn’t get to stand in its place? I mean, I’m happy for gay Californians but it kind of lets the rest of California that voted for Prop 8 off the hook when they don’t necessarily deserve it, though 52% is a lot closer than it was here.

  2. Stefan says:

    An interesting next question is about the part of DOMA that says that one state doesn’t have to recognize another state’s same sex marriage decisions. I imagine that will be the next case before the court.

      • Stefan says:

        Okay Scott, you tell me what this says: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

        That is quoting from Section 2 of DOMA.

  3. Scott65 says:

    Whereas GA does not have to issue marriage licenses to gay couples, it must recognize those married elsewhere. Ga’s ban is unconstitutional as per the striking down of DOMA

    • griftdrift says:

      Only applies to federal benefits. Georgia does not have to “recognize” a California marriage in order to provide Georgia specific benefits. A full faith and credit ruling would be required for that.

      • John Vestal says:

        On tax returns, I believe it *will* allow couples legally-married in other states to file as married in Ga, as state filing status must = Fed filing status……iirc.

  4. Scott65 says:

    In other words…any statute that defines marriage only as between a man and a woman is unconstitutional

      • George Chidi says:

        For the moment. You read the language and it’s pretty clear where they’re going with this.

        The Supreme Court will refuse to hear a case or throw it out on procedural grounds whenever it can as a matter of principle — deciding only what is crucial to be decided so that the fights occur somewhere else. That is the longstanding habit of this court, and one I respect. I’m not crazy about them failing to issue a “Loving v. Virginia” ruling, but I understand it.

        The subtext of the ruling is a respect for the legal sanctity of a gay union. The majority recognizes it as real and valid. The game is over. ” … for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.” — Anthony Kennedy. There’s no walking that kind of sentiment back.

        A legally-married person from Massachusetts is going to file suit in a state banning gay marriage that has a friendly federal bench, say … Arizona and the 9th Circuit. Another will do the same in Virginia, which is less friendly. The conflicting lower court rulings will have to be reconciled. And that will be the end.

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