Justice Anthony Kennedy’s sweeping opinion, striking down the federal Defense of Marriage Act, compels the federal government to accept that there is no difference between legally performed same-sex marriages and legally performed opposite-sex marriages. That is huge — but only goes so far.
The court left the question of allowing gay marriage to the states. This means that couples who are legally married in, say, Massachusetts or New York will be considered unmarried, and unable to be married, in Alabama or South Carolina. If they move to one of those states, they may receive the federal benefits of marriage but none of the state benefits.
Presumably, for example, such a couple could file a joint federal income tax return but would have to file individual state returns. One unintended consequence of Kennedy’s court ruling may be to create lots of new work for accountants.
Chief Justice John Roberts’s opinion in the California Proposition 8 case is even narrower, in that he basically decided not to decide — thus allowing gay marriage to resume in a state that is home to 11 percent of the U.S. population. Even the question of whether marriage rights, once granted, can be taken away was left unaddressed.
This leaves things basically they way they stood before — not after — the landmark 1967 Loving v. Virginia ruling that struck down laws against interracial marriage. At the time, 16 states had laws on the books making marriage between blacks and whites illegal. Married couples became “unmarried” when they crossed state lines.
But even if we’re far from the point where same-sex marriage is recognized as a fundamental right throughout the land, that’s clearly where we’re headed.
Kennedy’s majority opinion notes that the state of New York, by sanctioning gay marriage, conferred upon “this class of persons … a dignity and status of immense import.” DOMA, by contrast, has “the opposite purpose — too impose restrictions and disabilities.”
Kennedy writes: “DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”
The opinion is full of that kind of language. It speaks often of dignity, it lauds the “stability and predictability of basic personal relations” that marriage provides, it notes that there is an “evolving understanding of the meaning of equality.”
In a dissent, Roberts argued that “interests in uniformity and stability” justify Congress’ decision to pass DOMA. This question of uniformity will surely come up in future cases, when same-sex couples move across state lines and have their marital status summarily altered.
The court took pains to avoid even considering whether the Constitution’s guarantee of equal protection gives same-sex couples the inalienable right to marry. But when the court does eventually take up that question, it will have as precedent a decision that, while tightly constrained in its legal reasoning, is broad and forward-looking in its language.
The decision treats gay marriage, and gay people, as normal and unthreatening. It uses words that echo the Constitution’s most cherished guarantees of liberty and equality. This will, I believe, be a day long remembered.