The Supreme Court issued its ruling on the Defense of Marriage Act case in the Windsor case. In a 5-4 opinion authored by Justice Anthony Kennedy the court took the full plunge, ruling DOMA is unconstitutional under the 14th Amendment.

In essence Kenndy found that marriage is a matter for the states and in seeking to invade that territory Congress illegitimately set up a disfavored class of citizens:


Gay marriage advocate exchanges a high-five on the steps of the Supreme Court before today’s rulings. (J. Scott Applewhite/Associated Press)

DOMA rejects the long-established precept that the incidents, benefits, and obli­gations of marriage are uniform for all married couples within each State, though they may vary, subject to con­stitutional guarantees, from one State to the next. De­spite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.

It does NOT say however that states on their own could not make such distinctions. It doesn’t quite make the leap to requiring same-sex marriages by the state, but in declaring the federal government cannot because of 14th Amendment concerns it certainly leans in that direction. (“DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.”) That said, the opinion comes up just short of doing so: “By seeking to displace this [state same-sex marriage] protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.”

Chief Justice Roberts, in dissent, I think has this part correct: “The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States . . . may continue to utilize the traditional definition of marriage.”

UPDATE: In the California Prop. 8 case, as many suspected would be the outcome, the court dismissed and vacated the 9th Circuit decision because the state chose not to defend its own law. Writing for a 5 to 4 majority, Chief Justice Roberts writes:  “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. We decline to do so for the first time here.” If you think there is a little disconnect here — the U.S. government didn’t defend DOMA in the Windsor case yet the court ruled in that case — you have a point.  But this only serves to reinforce the new ground rules in same-sex marriage: We still don’t know what states can and cannot do regarding their own same-sex marriage laws.

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.