The Washington Post

In DOMA, Prop. 8 cases, Supreme Court advances same-sex marriage

The Supreme Court ruled in favor of advocates of same-sex marriage Wednesday, striking down the federal Defense of Marriage Act and declining to review a lower court’s invalidation of Proposition 8, a California law. The court did not go so far as to declare marriage a fundamental right that all states must respect, but its decisions in the two cases were still seen as victories for gay rights:

In striking down a key part of the 1996 Defense of Marriage Act (DOMA), the court declared that gay couples married in states where it is legal must receive the same federal health, tax, Social Security and other benefits that heterosexual couples receive.

In turning away a case involving California’s prohibition of same-sex marriage, known as Proposition 8, the justices left in place a lower court’s decision that the ban is unconstitutional. Gov. Jerry Brown (D) said he would order same-sex marriages to resume as quickly as possible.

The ruling means that same-sex marriage is now sanctioned in 13 states and the District of Columbia — a list representing more than a third of the population of the United States.

Robert Barnes

Supporters of gay marriage were jubilant Wednesday, celebrating outside the court after the ruling:

Wednesday was cemented as a milestone of gay civil rights progress — a rainbow-hued repeat of the night 4 1/2 years ago when Barack Obama made history for black Americans.

“I never thought I’d live to see the day,” Raul Fabela said outside the Supreme Court, echoing the words of Rep. John Lewis (D-Ga.) on Nov. 5, 2008. “I have so many friends that have passed on, and I wish they’d lived for this moment,” he said, his voice breaking. “This is the America we know.”

On both coasts of that America, in San Francisco and Washington, D.C., elated gay couples and supporters embraced, wept, celebrated, chanted victory slogans and savored the moment. They waved rainbow flags in the humid air outside the court and took shelter from the sun under rainbow umbrellas as a few opponents of gay marriage trickled away.

In New York, Edie Windsor, the 83-year-old woman who brought the case against the Defense of Marriage Act, called for a party at the Stonewall Inn, the Greenwich Village bar where gays fought a police raid 44 years ago Thursday, sparking three days of riots and the drive for equal rights.

“It’s an exciting day for civil rights in America. I am a significant step closer to being an equal citizen under the law,” Mark Strohbehn, 28, of Iowa said outside the Supreme Court.

Gregory Thomas, Meeri Kim and Lenny Bernstein

A largely jubilant crowd reacted Wednesday morning after the Supreme Court struck down the Defense of Marriage Act. (Associated Press)

Opponents expressed disappointment and promised to continue their fight, with one congressman promising to propose a constitutional amendment to overrule the court:

“A narrow radical majority of the court has substituted their personal views for the constitutional decisions of the American voters and their elected representatives,” said Rep. Tim Huelskamp (R-Kan.). “My response will be later this week to file a federal marriage amendment.”

Asked if he would have the leadership’s support, Huelskamp pointed to a statement from House Speaker John A. Boehner (R-Ohio) expressing disappointment in the decisions. Boehner’s comments were less forceful than those from more conservative House Republicans, though. . .

Rep. Michele Bachmann (R-Minn.), an outspoken tea party member, echoed Huelskamp.

“Marriage was created by the hand of God. No man, not even a Supreme Court, can undo what a holy God has instituted,” Bachmann said. “What the court has done will undermine the best interest of children and the best interests of the United States.”

Aaron Blake and Ed O’Keefe

The court’s decision was an immediate relief for foreign spouses of gay Americans, who can now apply for permanent residency:

On Wednesday morning, Kelly Costello and Fabiola Morales were exhausted from staying up all night with their 5-day-old twins, but they turned on the TV in their Potomac home anyway, anxious to learn whether the Supreme Court had granted their other dearest wish: permission to stay together in the United States.

“When we heard the news, everyone in the family started crying with happiness except the babies. They slept right through it,” said Morales, 39, a registered nurse and immigrant from Peru. Although legally married to Costello since 2011, she faced the likelihood of being deported next year after her visa expires. . .

Lawyers at Immigration Equality, a nonprofit group that championed Costello and Morales’s case and lobbied for DOMA’s repeal, called the ruling an “extraordinary” victory for same-sex couples, including some who have spent years in legal limbo or have been forced to live in separate countries because one spouse was not a legal U.S. resident.

“This means that gay and lesbian couples across the country and the world can plan for their futures and not have to live with uncertainty month after month,” said Steve Ralls, a lawyer with the group. “Those who have been forced into exile can come home. We have a stack of green card applications ready to go, and we will submit one for Kelly and Fabiola tomorrow.”. . .

Ralls said about 36,000 couples in the United States would be immediately affected by the ruling. He said that even if a couple is living in a state that does not recognize same-sex marriage, the foreign-born spouse can be sponsored for residency if the couple was legally married in a state that does. Maryland and the District allow same-sex marriage; Virginia does not.

Pamela Constable

Meanwhile, the future remains uncertain for many gay couples who do not live in states where they can legally marry:

Thousands of couples living in states that do not recognize gay marriage do not know yet whether they will be allowed to file their federal income taxes jointly. They also don’t know whether they are entitled to a range of marital tax exemptions, such as the estate tax provision at issue in the case that prompted the ruling.

That’s because the Internal Revenue Service, like many other federal agencies, defines marriage based on where a couple lives and not on where they married.

As a result, although the DOMA ruling grants full federal benefits to a gay couple living in Maryland, where same-sex marriage is now legal, it does not immediately grant full benefits to a couple living in Virginia, where gay marriage is not recognized.

Gay-rights supporters were quick Wednesday to press President Obama to address that inconsistency through executive action or other means.

Obama and his top aides, meanwhile, asked for patience, telling activists in a phone call within hours of the ruling that it will be complicated to figure out how to reinterpret or revise the hundreds of federal agency provisions affecting benefits for gay couples across the country.

Administration officials, requesting anonymity to discuss internal deliberations, said White House lawyers and Justice Department officials had begun analyzing all the relevant laws with an eye toward swift action.

Yet, these officials said, the administration was confronting complex questions that require careful consideration to avoid future legal battles. Losing such battles, they added, could prove counterproductive to gay rights.

Peter Wallsten

Justice Anthony M. Kennedy wrote for the court in the Defense of Marriage Act ruling, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented. Roberts wrote for the majority in the Prop. 8 case. He was joined by Breyer, Ginsburg, Kagan and Scalia, with the other four justices dissenting because they felt the court should hear the case.

Max Ehrenfreund writes for Wonkblog and compiles Wonkbook, a daily policy newsletter. You can subscribe here. Before joining The Washington Post, Ehrenfreund wrote for the Washington Monthly and The Sacramento Bee.


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