State marriage law may face tests

By Patsy R. Brumfield/NEMS 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.
Mississippi also will not be required to recognize same-sex marriages from other states.
But the decision opens up the possibility of attacks against such state prohibitions, said legal authorities.
“This decision is massive,” said 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 said he expects 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 Defense of Marriage Act, which for the first time at the federal level 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.
A total of 12 states, as well as the District of Columbia, 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.
That’s despite Wednesday’s Supreme Court decision to leave in place another provision in the law that says no state is required to recognize gay marriages performed in any other state. That provision was not under challenge.
But Cochran and a Mississippi ACLU spokesperson said it’s opened the door for more legal battles.
Bear Atwood, MS-ACLU’s legal director, terms the decision “the first crack against the discrimination” provided by DOMA.
“I think we will see challenges to those bans,” she said, “but whether we will start to hear it from Mississippi or a different state, there may be a better place for a challenge.”
Patrick Vaughn, general counsel for Tupelo-based American Family Association, said he was disappointed with the decision.
He called the ruling “social engineering” that “makes the battle for traditional marriage more difficult.”
Wednesday, a spokesman for the Mississippi Attorney General’s Office said they are “reviewing” the Supreme Court decision.
patsy.brumfield@journalinc.com