Same-sex union bans may be next targets, legal observers say

By PATSY R. BRUMFIELD/Daily Journal

Gay Mississippians still will not be allowed to marry here despite Wednesday’s U.S. Supreme Court decision striking down a federal law that defined marriage as the union between a man and a woman.
But the decision opens up attacks against such state prohibitions, say legal authorities.
“This decision is massive,” gauged George Cochran, constitutional law professor at the University of Mississippi Law Center.
“Justice Kennedy talks about the fundamental right against state discrimination on sexual preference,” he added, saying he expects a new wave of legal challenges to state bans on same-sex marriage.
Mississippi voters banned same-sex marriage in 2004 with passage of a constitutional amendment.
Cochran colleague Matthew Hall says he expect the law to take more time to sort that issue out.
“If Mississippi refuses to recognize a New York marriage, I can see that,” he said of a challenge to the state’s law. “But the court was really careful to say it was leaving those decisions to the states.”
In the historic vote, the nation’s highest court struck down the 1996-passed Defense of Marriage Act, which for the first time defined marriage as between a man and a woman and allowed states to deny legal recognition to same-sex marriage performed outside their borders.
A key provision barred federal benefits and recognition of same-sex marriages licensed by the states.
Justice Anthony Kennedy, speaking for the 5-4 majority, said DOMA was unconstitutional because it violated the right to liberty and to equal protection for gay couples.
“By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute” violates the Constitution, he said.
Dissenting were Justices John Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas.
The ruling means that more than 100,000 gay and lesbian couples who are legally married will be able to take advantage of tax breaks, pension rights and other benefits that are available to other married couples.
In 2004, 86 percent of Mississippians voting on a constitutional amendment agreed to prohibit same-sex marriage from being conducted or recognized in the state.
Since DOMA’s passage, nine states have legalized same-sex marriage.
Hall, UM Law Center’s associate dean for academic affairs, says this aspect of the decision “will have a tremendous impact on individuals who want federal benefits, such as tax breaks and spousal benefits.”
He predicts the states with same-sex marriage bans, though, will be under pressure to recognize the validity of marriages in other states.

National story: High court strikes down federal marriage provision

By Mark Sherman
The Associated Press

WASHINGTON — In significant but incomplete victories for gay rights, the Supreme Court on Wednesday struck down a provision of a federal law denying federal benefits to married gay couples and cleared the way for the resumption of same-sex marriage in California.

The justices issued two 5-4 rulings in their final session of the term. One decision wiped away part of a federal anti-gay marriage law that has kept legally married same-sex couples from receiving tax, health and pension benefits.

The other was a technical legal ruling that said nothing at all about same-sex marriage, but left in place a trial court’s declaration that California’s Proposition 8 is unconstitutional. That outcome probably will allow state officials to order the resumption of same-sex weddings in the nation’s most populous state in about a month.

The high court said nothing about the validity of gay marriage bans in California and roughly three dozen other states.

The outcome was not along ideological lines.

Chief Justice John Roberts wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Antonin Scalia.

“We have no authority to decide this case on the merits, and neither did the 9th Circuit,” Roberts said, referring to the federal appeals court that also struck down Proposition 8.

In the case involving the federal Defense of Marriage Act, Justice Anthony Kennedy wrote the majority opinion, joined by the court’s liberal justices.

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,” Kennedy said.

“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal,” he said.

Some in the crowd outside the court hugged and others jumped up and down just after 10 a.m. EDT Wednesday when the DOMA decision was announced. Many people were on their cell phones monitoring Twitter, news sites and blogs for word of the decision. And there were cheers as runners came down the steps with the decision in hand and turned them over to reporters who quickly flipped through the decisions.

Chants of “Thank you” and “USA” came from the crowd as plaintiffs in the cases descended the court’s marbled steps

Kennedy was joined by the court’s four liberal justices.

Chief Justice John Roberts, Justices Samuel Alito and Clarence Thomas, and Scalia dissented.

Same-sex marriage has been adopted by 12 states and the District of Columbia. Another 18,000 couples were married in California during a brief period when same-sex unions were legal there.