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The following article was posted on June 26th, 2013, in the New Times - Volume 27, Issue 48 [ Submit a Story ]
The following articles were printed from New Times [newtimesslo.com] - Volume 27, Issue 48

Can't hurry love

BY PATRICK M. KLEMZ

California’s same-sex couples can soon marry again, with equal rights and responsibilities under federal law, after the U.S. Supreme Court released a pair of highly anticipated June 26 opinions.

The court published its opinion in the Proposition 8 case, Hollingsworth v. Perry, about 30 minutes after striking a section of the 1996 Defense of Marriage Act (DOMA) denying federal benefits to same-sex spouses. In U.S. v. Windsor, the court determined that Congress unconstitutionally intended to stigmatize legally married same-sex spouses by enacting DOMA Section 3. 

“DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others,” Justice Anthony Kennedy wrote.

The revision of DOMA only affects same-sex couples living in the 13 states that recognize gay marriage, which now again includes California. 

Four years, six months, and almost three weeks ago, California voters passed Proposition 8, amending the state constitution to define marriage as only between a man and a woman. A U.S. District Court ruled Aug. 4, 2010 that the change violated the Equal Protection Clause of the 14th Amendment. The Ninth Circuit affirmed on appeal in 2012.

The Supreme Court didn’t uphold either Perry ruling. Instead, the Justices found that Dennis Hollingsworth of ProtectMarriage.com, who took up the cause of defending Proposition 8 after California refused to, lacked standing to appeal the state’s loss at the trial level. That procedural stance effectively peels Proposition 8 out of the California Constitution. 

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” Chief Justice John Roberts wrote for the majority. “We decline to do so for the first time here.”

Since it addresses standing to appeal the trial court result under Article III of the U.S. Constitution, the 17-page majority opinion barely touches on the underlying issue of gay marriage. That topic comes out more fully in Windsor and its two heated dissents. 

Justice Antonin Scalia roughly chided the Windsor majority for holding that DOMA Section 3 violates equal protection without going so far as to establish a standard for reviewing future gay marriage cases. Scalia wanted to review DOMA under the highly differential standard that applies to, for example, laws discriminating against economic groups.

“The court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat,” Scalia wrote. 

Although Perry and Windsor gave California same-sex couples what they wanted personally—access to marriage and its attendant benefits—those in other states must settle for a partial resolution. The outcome advocated by the Obama administration would have forced California and the other seven states allowing civil unions to recognize unified same-sex partners as married spouses.

With the procedural ruling in Perry, federal courts remain free to apply a loose framework of constitutional standards—including those added by Windsor—to state laws limiting gay marriage rights.