The Supreme Court has decided on two cases involving gay marriage: California's anti-gay marriage Proposition 8 and the federal Defense of Marriage Act.
Stay tuned below for all the latest news, reaction and analysis.
Now that her cousin has written a Supreme Court decision making it possible, Jean Podrasky is planning to get married.
Chief Justice John Roberts's lesbian cousin lives in California, where the court paved the way for gay marriage to become legal again by ruling that a case involving the anti-gay marriage Proposition 8 did not have standing.
“I can now get married. I feel like my partner and I have been in limbo for several years. We’ve been engaged for a couple years, but now we can start planning," she told Talking Points Memo.
Roberts's cousin attended the court's hearing on Proposition 8 in March; she got tickets from the chief justice. She pronounced herself "stunned" that Roberts sided with gay marriage advocates on Proposition 8 (although the decision could have gone further) but not on the Defense of Marriage Act.
Asked whether she would invite Roberts to her wedding, she said, “I actually don’t know ... we don't have our guest lists yet."
With the crux of the Defense of Marriage Act now thrown out, Democrats are moving to repeal the entire law.
Sen. Dianne Feinstein (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.) announced Wednesday afternoon that they will re-introduce a bill that would strike down the entire law.
While the Supreme Court struck down the prohibition on federal recognition of same-sex marriage, part of the law remains -- specifically, the provision that states don't need to recognize same-sex marriages performed in other states.
“Today’s ruling by the Supreme Court clearly establishes that one class of legally married individuals cannot be denied rights under federal law accorded to all other legally married couples," Feinstein said in a statement. "Our legislation is necessary because inequities in the administration of more than 1,100 federal laws affected by DOMA — including Social Security and veterans benefits — will still need to be fixed. It is time Congress strike this discriminatory law once and for all.”
The bill has 161 co-sponsors in the House and 41 in the Senate.
The U.S. Office of Personnel Management, essentially the human resources office for the federal government, says it is working with the Justice Department to sort out myriad concerns regarding the pay and benefits of the nation’s 2 million civilian federal employees. In the meantime, it is asking affected employees for patience.
“While we recognize that our married gay and lesbian employees have already waited too long for this day, we ask for their continued patience as we take the steps necessary to review the Supreme Court’s decision and implement it,” said OPM Acting Director Elaine Kaplan. “As soon as we have updates to share, they will be posted on our website.”
About 2 percent of federal workers identify as lesbian, gay, bisexual or transgender, according to a 2012 government-wide employee survey.
Even before the historic Supreme Court ruling overturning a key part of the Defense of Marriage Act, lawyers in the Obama administration had begun working through the complicated and politically explosive question it now faces: How does the ruling affect federal benefits for legally married gay couples across the country?
A special task force was recently created in the Justice Department’s Office of Legal Counsel to grapple with the issues, according to people familiar with the discussions.
In a phone call with activists following the ruling, President Obama and his top legal adviser, White House Counsel Kathy Ruemmler, offered assurances that the administration would work through the issues. But they asked for patience, according to people familiar with the call, telling the activists that the legal questions involved were complicated.
Some issues are easy, according to people familiar with the administration’s deliberations. Gays who live anywhere in the U.S. will now be permitted to apply for green cards for their spouses if they were legally married in the District of Columbia or one of the 12 states where same-sex marriage is legal. Moreover, legally married gay military couples will now have the right to live together in military housing.
Those two developments are almost immediate because the Pentagon and U.S. immigration officials define marriage based on where couples held their celebrations and not where they live.
But for many gay couples who live in the 38 states where same-sex marriage is not legal, big questions remain on a range of federal benefits distributed by agencies that define marriage by a couple’s place of residence.
High on that list of agencies is the Internal Revenue Service. Obama and his administration will have to decide, for instance, whether legally married gay couples in places such as Virginia, Texas and Ohio will have the same right to file jointly as couples of D.C., Massachusetts and Maryland, where gay marriage is legal.
The issue at the heart of Wednesday’s ruling – the estate tax marriage exemption – also is an open question. Will legally married gay couples living in states without legal marriage be forced to pay the estate tax when their spouse dies?
Complicating matters is that many same-sex couples may want to revise their tax filings from the past three years -- creating an immediate burden for the IRS.
Meantime, conservative activists have vowed to sue if the White House uses executive authority to stretch the benefits for gay couples beyond states that have approved legal same-sex marriage.
Hover your mouse over the right side of the timeline to click through events.
Sen. Rand Paul (R-Ky.) is the rare Republican to praise today's Supreme Court ruling.
Though Paul is not a gay marriage supporter, he said it's appropriate for the issue to be decided on a state-by-state basis.
"As a country, we can agree to disagree,” Paul told ABC's Jeff Zeleny. “As a Republican Party, that’s kind of where we are as well. The party is going to have to agree to disagree on some of these issues.”
Paul praised Justice Anthony M. Kennedy, the author of the DOMA opinion, for helping to avoid "a cultural war" and attempting "to strike a balance.”
Paul's support for the decisions stand in contrast to his potential 2016 presidential primary opponent, Sen. Marco Rubio (R-Fla.), who labeled the rulings a "serious mistake."
The Post is including in this live blog reaction from several noted legal experts. This comes from Peter Sprigg, senior fellow for policy studies at the Christian conservative Family Research Council:
Advocates of redefining marriage did not get what they wanted today -- a declaration that all 50 states must treat same-sex unions as "marriages." That means that this debate will continue across the country. This is an issue which should be resolved through the democratic process, not the courts.
We were disappointed, however, that the Court failed to uphold the Defense of Marriage Act (DOMA) and Proposition 8. The DOMA decision raises as many questions as it answers; for example, what happens to a "married" same-sex couple when they move to a state that does not recognize their marriage? Will the federal government again be at odds with state law (which was supposedly the problem with DOMA to begin with)?
The Prop 8 decision, while limited in scope with respect to marriage, is alarming because it seems to allow the executive branch of state government to simply nullify the initiative process by refusing to defend a voter-approved law or amendment.
Society needs children, and children need a mother and a father. This is why authentic marriage can only consist of the union of a man and a woman, and we will continue to speak and defend the truth about marriage wherever it is attacked.
The Post is including in this live blog reaction from several noted Supreme Court scholars. This comes from Elizabeth Wydra, chief counsel at the progressive Constitutional Accountability Center:
Ten years ago today, in the landmark case of Lawrence v. Texas, the Supreme Court struck down state laws making gay men and lesbians criminals. Today is another huge step forward in vindicating the Constitution's promise of equality for all persons.
In a resounding decision striking down a core part of the Defense of Marriage Act (DOMA), the Supreme Court held that the Constitution prohibits the federal government from making legally married same-sex couples second class citizens. DOMA’s Section 3 violated the basic constitutional requirement of equality under the law, establishing an across-the-board rule -- applicable to more than 1,000 federal legal protections -- that denied to legally-married same-sex couples the full range of federal rights and benefits that exist to help support committed, loving couples form enduring, life-long bonds.
As Justice Kennedy explained this morning, the express purpose of the law was to write inequality into the United States Code. It was intended “to identify a subset of state-sanctioned marriages and make them unequal.” As the Court held today, the Constitution does not tolerate such discrimination. It forbids the government from singling out a certain class of citizens for disfavored legal status or general hardships.
Justice Kennedy’s opinion seemed to understand the hardship caused by DOMA, from the legal to the financial to the emotional, noting that the law “humiliates tens of thousands of children now being raised by same-sex couples.” These portions of the opinion echoed the stories and sentiment of hundreds of Americans gathered outside the courthouse, waiting for the Court to recognize the equal dignity of gay and lesbian couples and their families. There was palpable joy when word of the ruling spread through the crowd. The Gay Men’s Chorus of Washington broke out into song, giving a moving rendition of the national anthem.
While the Court did not take the boldest step possible in the challenge to Proposition 8, which the Court dismissed today because the Proposition’s backers did not have the legal right to defend it in court, the Court’s ruling allows marriage equality to once again be the law of the land in California. The Supreme Court’s Prop 8 ruling let stand the federal district court's holding that Prop 8’s ban on same-sex unions violates the 14th Amendment rights of gay men and lesbians in California. After today, Proposition 8 and the regime of federal discrimination under DOMA are no more.
Today is a great day for equality. And Justice Kennedy’s opinion for the Court striking down DOMA provides hope for supporters of marriage equality who will continue the fight to vindicate gay and lesbian Americans’ right to marry the person of their own choosing. The DOMA ruling makes clear that laws aimed at labeling gay and lesbian couples and their families as second class, based on no more than hostility and animus, run afoul of the Constitution.
Justice Kennedy wrote in today’s ruling that the Constitution’s guarantee of equality must at the very least mean that a bare legislative desire to harm a politically unpopular group “cannot justify disparate treatment of that group.” Opponents of marriage equality have never been able to come up with any legitimate reason for stigmatizing gay and lesbian couples and denying the dignity of these relationships.
Justice Kennedy wrote the decisions striking down DOMA today and striking down Texas’s anti-sodomy law ten years ago. The final piece in ensuring his place in history may well be to eventually recognize that the Constitution requires all states to follow the Constitution’s guarantee to any person -- regardless of race, sexual orientation, or other group characteristics -- equality of rights, including the fundamental right to marry the person she loves.
The Supreme Court made a "serious mistake" in declaring DOMA unconstitutional, Sen. Marco Rubio (R-Fla.) says.
Rubio, a rising Republican star and likely 2016 presidential candidate, said the justices "should not have second guessed the will of the American people acting through their elected representatives without firm constitutional justifications."
He's "grappled" personally with the issue of same-sex marriage, he said.
“I believe that marriage is a unique historical institution best defined as the union between one man and one woman. In the U.S., marriage has traditionally been defined by state law, and I believe each state, acting through their elected representatives or the ballot, should decide their own definition of marriage," he said. "For the purposes of federal law, however, Congress had every right to adopt a uniform definition and I regret that the Supreme Court would interfere with that determination."
Organizing for Action, the offshoot of President Obama's reelection campaign, is raising money off today's Supreme Court decisions.
In an e-mail to supporters, OFA asks them to sign up to join the fight. At the end, it asks for money.
"A movement of millions elected President Obama. Let's keep fighting for change," it says. "Chip in $5 or more to support Organizing for Action today."
The response on social media to the rulings on DOMA and Prop 8 was swift and widespread, with more than 200,000 tweets mentioning both the rulings and gay marriage in their tweets. Much of the immediate response has been in support of marriage equality, as users tweeted with popular hashtags including #DOMA, #loveislove and #MarriageEquality.
Since the decisions this morning, many political figures have released statements and weighed in on social media. President Obama's tweet about DOMA - the most popular on social media - was retweeted more than 50,000 times.
— Barack Obama (@BarackObama) June 26, 2013
President Clinton, who had initially signed DOMA into law, also tweeted his support of the Supreme Court's ruling.
— Bill Clinton (@billclinton) June 26, 2013
Other lawmakers including Sen. Chris Coons (D-Del.) and Rep. Nancy Pelosi (D-Calif.) were among those who responded on social media:
It just got better.
— Senator Chris Coons (@ChrisCoons) June 26, 2013
SCOTUS took a step backward on voting rights, on civil rights, & on justice for all. The decision is a cue for Congress to strengthen #VRA.
— Nancy Pelosi (@NancyPelosi) June 25, 2013
While the response on social media has been overwhelmingly in favor of the Supreme Court's decisions, a few prominent political figures and elected officials have also spoken out against the decisions.
Rep. Michele Bachmann (R-Minn.) released a statement saying, "Marriage was created by the hand of God. No man, not even a Supreme Court, can undo what a holy God has instituted...What the Court has done will undermine the best interest of children and the best interests of the United States."
One of the most powerful responses came from former Arkansas Gov. Mike Huckabee
My thoughts on the SCOTUS ruling that determined that same sex marriage is okay: "Jesus wept."
— Gov. Mike Huckabee (@GovMikeHuckabee) June 26, 2013
Celebrity responses on Twitter have also been circulating on social media, with Ellen DeGeneres and Lady Gaga getting thousands of retweets:
It's a supremely wonderful day for equality. Prop 8 is over, and so is DOMA. Congratulations everyone. And I mean everyone.
— Ellen DeGeneres (@TheEllenShow) June 26, 2013
To see responses from Washington Post readers or weigh in with your own comments, click here.
Part of the scene today near the Supreme Court: The Gay Men's Chorus of Washington D.C. singing the National Anthem.
The Virginia governor's race -- ever a study in contrasts and the lone competitive governor's race of 2013 -- is splitting over today's gay marriage ruling.
The Post's Ben Pershing reports:
The court’s decisions to deem a key element of the federal Defense of Marriage Act unconstitutional and dismiss a case regarding California’s gay marriage ban on technical grounds — allowing such marriages to resume in that state — appear to have no immediate impact on Virginia’s own laws, experts said. But the rulings returned to the fore an issue that has sharply divided the two leading candidates for governor, Attorney General Ken Cuccinelli II (R) and businessman Terry McAuliffe (D).
Cuccinelli has consistently weighed in to keep the California law banning gay marriage in place. In 2010, he joined attorneys general from 12 other states infiling an amicus brief with a federal appeals court arguing that Proposition 8 should be allowed to stand. Cuccinelli joined a larger group of states in January to file another amicus brief with the Supreme Court in case, known as Hollingsworth v. Perry.
In both briefs, Cuccinelli and his allies argued that prohibiting a gay marriage ban could open the door to legalizing polygamy, among other potential consequences.
In a statement issued Wednesday by the Attorney General’s office, Cuccinelli spokesman Brian J. Gottstein noted that Virginians had “voted overwhelmingly” in 2006 to ban gay marriage in the state constitution.
“The Supreme Court’s decision in California’s Proposition 8 case could have had implications for all states with marriage laws similar to California’s,” Gottstein said. “As the attorney general’s legal duty is to vigorously defend Virginia’s laws when they are challenged, he filed a brief in conjunction with several other states in the California case and used every available legal argument to defend Virginia’s Constitution and preserve the will of the citizens of the commonwealth.
“Today, the court’s two decisions on marriage make clear that the rulings have no effect on the Virginia Marriage Amendment or to any other Virginia law related to marriage. Consistent with the duties of the attorney general, this office will continue to defend challenges to the constitution and the laws of Virginia.”
Like most prominent Democrats around the country, McAuliffe said Wednesday he applauded the Supreme Court rulings “because everyone should be treated equally.”
“While I support marriage equality, I understand that this is an issue that Virginians of goodwill come down on both sides of,” McAuliffe said in a statement issued by his campaign. “This decision moves our nation in the right direction, but there is more to be done to ensure we have equality for all.”
The Post is including in this live blog reaction from several noted Supreme Court scholars. This comes from Brad Sears, the executive director at UCLA's Williams Institute, which focuses on legal issues affecting the LGBT community:
The Supreme Court’s rulings regarding the Defense of Marriage Act (DOMA) and California’s Proposition 8 will impact real families in very real ways.
In striking down DOMA, Justice Kennedy recognized that it “writes inequality into the entire U.S. Code.” DOMA materially harms same-sex couples and their children by depriving them of the protection of over 1,000 federal laws and relegating them to “second-class” status.
Striking down DOMA will have important economic and legal consequences for the nation’s 650,000 same-sex couples, of which over 114,000 are legally married and over 20 percent are raising children. Many of the federal protections will help the most vulnerable among these families.
For example, an estimated 24,700 same-sex couples are bi-national (one U.S. citizen and one non-citizen), and today’s ruling will open the door for a citizen to obtain permanent residence for a non-citizen, same-sex spouse.
In addition, surviving spouses in elderly same-sex couples will gain access to spousal social security benefits, which could add up to more than $5,700 to the monthly income of the surviving spouse.
And under the Family and Medical Leave Act (FMLA), same-sex spouses will be able to take time off work to take care of each other when they are sick or disabled.
As a result of the court’s ruling on Proposition 8, more people than ever will live in states where same-sex couples can marry. The ruling’s denial of standing to the proponents of Proposition 8 will open marriage to California’s nearly 100,000 same-sex couples.
Prior to today’s ruling, 18 percent of the entire U.S. population and 22 percent of same-sex couples lived in the 12 states and the District of Columbia, where same-sex couples can legally marry. With the addition of California, 30 percent of the entire U.S. population and 37 percent of same-sex couples will now live in states with marriage equality.
While historic, today’s rulings do not extend marriage, which Justice Kennedy describes as “a dignity and status of immense import,” to all same-sex couples and their families. They extend marriage to same-sex couples in California, but go no further. This leaves 5.5 million LGBT Americans living in states without marriage equality. And the DOMA decision leaves unresolved whether same-sex spouses who do not currently reside in a state that recognizes their legal marriage will have access to federal benefits and protections.
That said, Justice Kennedy notes the pace towards marriage equality started “slowly at first and then in rapid course.” Sharp increases in public support for marriage equality over the last few years indicate that this rapid pace will continue.
In the wake of today’s decisions, more states will likely extend marriage to same-sex couples through their legislature or at the ballot box, just as six states have done so in the last year alone. And it is likely that when courts consider “mini-DOMAs” -- state-level bans on same-sex couples marrying -- they will see little to distinguish the impact of those laws from how Justice Kennedy’s describes DOMA “burdening” and “demeaning” same-sex couples and their children.
The Post is including in this live blog reaction from several noted Supreme Court experts. This comes from Theodore J. Boutrous Jr., one of the lead lawyers for the plaintiffs in the Proposition 8 case who served alongside Ted Olson and David Boies:
Today is a great day for America. In two decisions, the U.S. Supreme Court restored marriage equality to California, removed the impediments to marriage equality under federal law and confirmed the inevitability of true equality nationwide.
In Windsor, Justice Kennedy held that denying same-sex couples the right to be recognized as married serves no purpose other than “to impose inequality,” that it “demeans” gays and lesbians by telling “all the world” that they are “second-tier” citizens, and that it “humiliates” their children.
And in Perry, the chief justice held that allowing gay and lesbian couples to marry imposes no harm whatsoever on heterosexual couples or the institution of marriage.
As a result of the Court’s decisions, more than 94 million Americans -- who represent 30 percent of our country -- now have access to same-sex marriage under both state and federal law.
All Americans should view today’s decisions as a victory for the ideals of liberty and equality, and as a recognition of the sanctity and importance of marriage in our society.
The same-sex spouses of members of the military will start getting federal benefits "as soon as possible," Defense Secretary Chuck Hagel said in a statement today.
"The Department of Defense welcomes the Supreme Court's decision today on the Defense of Marriage Act," he said. "The Department of Defense intends to make the same benefits available to all military spouses -- regardless of sexual orientation -- as soon as possible. That is now the law and it is the right thing to do."
The Pentagon extended some federal benefits to same-sex couples earlier this year, but some benefits could not be included without violating DOMA.
House Minority Leader Nancy Pelosi (D-Calif.) had a simple response to retiring Rep. Michele Bachmann's condemnation of the Supreme Court's DOMA decision: "Who cares?"
Her reaction to the two decisions themselves: "Thank God."
The congresswoman spoke at a press conference on Capitol Hill.
Bachmann, a conservative Minnesota Republican, warned in a statement that the ruling against DOMA would "will undermine the best interest of children and the best interests of the United States.”
California Gov. Jerry Brown (D) announced via Twitter that the state will soon begin issuing marriage licenses to gay couples.
— Jerry Brown (@JerryBrownGov) June 26, 2013
Democrats are hailing today's decision striking down a key element of the Defense of Marriage Act.
“Today’s Supreme Court decision shows how extreme and intolerant House Republicans really are," Rep. Steve Israel (D-Calif.), chairman of the Democratic Congressional Campaign Committee, said in a statement. "They’re so out-of-step with Americans that House Republicans voted to waste millions of taxpayer dollars defending a discriminatory law that even a conservative Supreme Court invalidated."
But in fact, most Democrats in Congress actually voted for that "discriminatory law" back in 1996 -- including dozens who remain in Congress today.
According to a Wall Street Journal study, 35 of the 65 current House and Senate Democrats who were in Congress back in 1996 voted for the law, which passed easily in both chambers.
Most of them have since come out in support of gay marriage -- 25 of the 35.
Here's the list of the Democrats who are still around who voted for DOMA:
- Tim Johnson (as House member)
- Jack Reed (as House member)
- Schumer (as House member)
- Harry Reid
- Menendez (as House member)
- Carl Levin
- Cardin (as House member)
- Durbin (as House member)
- Eddie Bernice Johnson
- Sandy Levin
- Sanford Bishop
- Corrine Brown
Hundreds of same-sex marriage supporters who had gathered outside the Supreme Court on a hot and muggy Wednesday morning erupted in cheers and smiles as word of the decision trickled out.
“It’s so important to us. It’s our life. We look forward to the day we will tell our children that we were here,” said Alexandra Dupree, a 23-year-old marketing coordinator for a non-profit group who came to the court with her girlfriend.
“We got 99 problems, but DOMA ain’t one!” they chanted about the Defense of Marriage Act, adapting the words of a song by the rapper Jay-Z. Most of the couples were young. Some brought their children.
“It’s an exciting day for civil rights in America. I am a significant step closer to being an equal citizen under the law,” said Mark Strohbehn, 28, of Iowa.
Some the scenes outside the court, as captured by the Post's Ruth Tam:
Attorney General Eric Holder praised the Supreme Court's decision on the Defense of Marriage Act and pledged to work quickly to implement it but said that the fight for equality continues.
"This decision impacts a broad array of federal laws. At the President’s direction, the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision," he said. "Despite this momentous victory, our nation’s journey – towards equality, opportunity, and justice for everyone in this country – is far from over. Important, life-changing work remains before us. And, as we move forward in a manner consistent with the Court’s ruling, the Department of Justice is committed to continuing this work, and using every tool and legal authority available to us to combat discrimination and to safeguard the rights of all Americans."
The court’s decision on Prop 8 may have turned on something of a technicality, but it basically turns back the clock on the case to a historic moment for the gay rights movement: Aug. 4, 2010, when a federal judge overturned California’s voter-approved ban on gay marriage.
Not just any judge, though. The decision was made by Judge Vaughn R. Walker, a Ronald Reagan nominee who shortly thereafter retired from the bench and disclosed publicly what had long been rumored, that he was gay and in a long-term committed relationship. And his lengthy, detailed opinion provided a path forward for gay rights groups seeking more victories in the courtroom.
Jane Schachter, a law professor at Stanford University, wrote in the Harvard Law Review that Walker’s decision “supplied a blueprint for national marriage equality” with an opinion that “boldly explored the connections between sexual orientation and gender discrimination, and ultimately found that same-sex couples have a fundamental right to marry that triggers strict scrutiny under the U.S Constitution.”
At the time, unsurprisingly, Walker did not talk about his personal life. Proponents of Prop 8, however, sought unsuccessfully to have his ruling vacated, arguing that he stands to personally benefit from his ruling.
Since then, Walker has opened up a little and has even acknowledged his role in promoting gay rights, earlier this year speaking at the Harvey Milk Diversity Breakfast sponsored by a Palm Springs gay group. "It's true much remains to be done, but we can also take a good deal of satisfaction that we have progressed quite remarkably," he said at the event, according to the local CBS affiliate.
Bill and Hillary Clinton, in a joint statement, praised the court's rulings.
Bill Clinton signed the Defense of Marriage Act into law in 1996. But both he and his wife recently announced their support for gay marriage.
"By overturning the Defense of Marriage Act, the Court recognized that discrimination towards any group holds us all back in our efforts to form a more perfect union," the Clintons said. "We are also encouraged that marriage equality may soon return to California. We applaud the hard work of the advocates who have fought so relentlessly for this day, and congratulate Edie Windsor on her historic victory."
Edith Windsor broke out in tears after learning a key element of the Defense of Marriage Act has been ruled unconstitutional, she said in a press conference Wednesday afternoon.
Windsor brought a lawsuit against DOMA after being charged the estate tax on the death of her wife, Thea Speyer.
"If I had to survive Thea, what a glorious way to do it, and she would be so pleased," she said. She thanked her lawyers and her allies gay and straight: "We won all the way, so thank you from the bottom of my heart."
The former IBM programmer said she had not let herself assume victory. "I prepared three speeches," she said -- one for victory, one for defeat, and one for a ruling that let a lower court ruling in her favor stand but did not go further.
If her wife could speak to her, what would she say, asked one reporter? "'You did it, honey,'" Windsor replied.
The Post's graphics team lays it all out here (click the image to see the interactive version):
That's the question we attempt to answer in a new interactive project.
The project features user-submitted stories about how the Supreme Court gay marriage rulings impact their lives. Users can choose which four areas of their life are impacted and then tell us in their own words why it matters to them.
Click below to check it out:
The Post is including in this live blog reaction from several noted Supreme Court scholars. This comes from Suzanna Sherry, a constitutional law professor at Vanderbilt University:
Windsor v. United States makes history – in more ways than one – but it doesn’t make new law. The principle announced in Windsor had its origins in the adoption of the 14th Amendment in 1866, saw daylight as the Court began rejecting Jim Crow laws during mid-20th century, and came to fruition in 1996 in Romer v. Evans. That principle underlies all of the Equal Protection cases before and since: The government cannot brand any group of people as pariahs or outcasts.
Hidden behind the legal niceties of tiers of scrutiny and other Equal Protection doctrines is the basic proposition relied on by Justice Kennedy in Romer as well as in today’s majority opinion in Windsor. “The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Congress – and by extension the states – cannot purposely and deliberately brand any group with the stigma of inferiority, purely out of animus or disapproval. It cannot make pariahs out of law-abiding citizens for no other reason than to demean them. That is what DOMA did, and that is why DOMA is unconstitutional.
And the pariah principle tells us something else as well: It tells us how Hollingsworth v. Perry would have come out had the Court reached the merits in that case. The Ninth Circuit, in affirming the district court’s invalidation of Prop 8, did not rely on the district court’s careful and thorough analysis of a constitutional right to marry. Instead, the court found simply that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians” and to classify them as inferior. Relying on Romer, it held that Prop 8 was “enacted with only the constitutionally illegitimate basis of ‘animus toward the class it affects.’”
If the Justices who joined Justice Kennedy’s Windsor opinion reached the merits in Perry, they would have agreed with the Ninth Circuit. Like DOMA, Prop 8’s sole purpose and effect was to demean and stigmatize, to make pariahs out of those in same-sex marriages.
The Pariah Principle, reiterated and given pride of place by the Windsor majority, should now govern all challenges to same-sex marriage. Like Jim Crow laws before them, same-sex marriage laws will be invalidated one by one as courts recognize and apply the core principle of the Equal Protection Clause: The government cannot brand any group as unworthy of equal respect and dignity.
Below are 12 ways the Defense of Marriage Act was ruled to be unfair to gay couples who were legally married in their states, as outlined in Justice Anthony M. Kennedy’s opinion:
- It prevents same-sex couples from extending federal health care benefits to their spouses.
- It humiliates same-sex couples’ children and ”makes it even more difficult for the children to understand the integrity and closeness of their own family.”
- It deprives them certain special protections for domestic-support obligations.
- It prohibits them from being buried together in veterans’ cemeteries.
- Someone who retaliates against a federal judge or law enforcement officer by harming their same-sex spouse would not be subject to the enhanced penalties they might be if the spouse were of the opposite sex.
- It “demeans the couple, whose moral and sexual choices the Constitution protects.”
- It raises the cost of health care for families led by same-sex spouses by taxing benefits provided to same-sex spouses.
- It denies or reduces benefits allowed to families upon the loss of a spouse. (This was the problem encountered by Edith Windsor, the plaintiff in the case, an 83-year-Massachusetts woman who was subject to a $363,000 estate tax after her wife died, leaving her property.)
- It prevents gay couples from fulfilling certain spousal obligations, such as having both partners’ income considered when one is applying for student financial aid.
- It excludes them from federal ethics rules, including one that bars federal officials’ spouses from benefiting financially from their partners’ actions, and one that prevents from accepting gifts from certain sources.
- It forces gay couples to follow a complicated procedure to file joint state and federal taxes.
- It “undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”
In a statement written aboard Air Force One en route to Africa, President Obama said Americans "are all more free" following the Supreme Court's gay marriage decisions:
Here's the full statement:
"I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.
"This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.
"So we welcome today’s decision, and I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.
"On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision – which applies only to civil marriages – changes that.
"The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free."
A group of conservative House Republicans blasted the decisions issued Wednesday by the U.S. Supreme Court as legally inconsistent and detrimental to the future of the nation’s children. One lawmaker pledged to soon file a constitutional amendment to reinstate the Defense of Marriage Act.
“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 leadership's support, Huelskamp pointed to a statement from House Speaker John Boehner (R-Ohio) expressing disappointment in the decisions.
Huelskamp and other tea party-backed lawmakers spoke at a monthly meeting with reporters they call “Conversations with Conservatives,” which allow reporters to quiz some of the most ardent conservatives on issues facing Congress.
In opening remarks, Huelskamp said he was primarily concerned about how the rulings could affect American children. Decades of social science research “has shown that every child deserves a mom and dad,” he said, adding later, “I think children will be hurt.”
Sen. Lisa Murkowski (R-Alaska), who last week became the third GOP senator to endorse gay marriage, praised the Supreme Court's decisions Wednesday.
“I welcome today’s Supreme Court decision to strike down the Defense of Marriage Act because the federal government should empower households, respect the decisions of states and otherwise get out of the way," she said in a statement. "This ruling represents victories for states’ rights and equal treatment under the law.”
The other two GOP senators who back gay marriage are Sens. Rob Portman (R-Ohio) and Mark Kirk (R-Ill.). Fifty-one of the 54 members of the Senate's Democratic caucus also back gay marriage.
Ralph Reed, the head of the Christian conservative Faith and Freedom Coalition, denounced the Supreme Court's rulings Wednesday.
Reed noted that the Defense of Marriage Act had broad bipartisan support in Congress.
"Today’s Supreme Court opinions on marriage are a stunning and indefensible display of judicial activism," Reed said in a statement. "The Defense of Marriage Act merely codified what federal law already stated with regard to marital benefits. It passed Congress with a bipartisan majority large enough to pass a constitutional amendment and was signed into law by Bill Clinton. There has never been any attempt by either party to repeal or modify it."
Reed called the rulings "an Orwellian act of judicial fiat."
"We will now seek the passage of federal legislation to remedy this situation as much as possible given the parameters of the decision," he said.
Christian conservatives have been speaking out against the rulings, but Republicans in Congress have been considerably quieter. In a previous statement, House Speaker John Boehner (R-Ohio) expressed "disappointment" but significantly less outrage.
Eight churches in Washington, D.C., including the National Cathedral, are ringing their bells at noon today to celebrate the Supreme Court decisions on gay marriage.
The Cathedral will attempt a quarter peal, which takes about 45 minutes.
Here are the other seven churches ringing their bells:
• St. John's Episcopal Church, Lafayette Square
• St. Columba's Episcopal Church
• Foundry United Methodist Church
• New York Avenue Presbyterian Church
• National City Christian Church
• All Souls Unitarian Church
• Epiphany Episcopal Church
The Cathedral is also holding a prayer service for gay families at 7 p.m. The Rev. Gary Hall announced in January that the Cathedral would begin performing gay marriages.
House Speaker John Boehner (R-Ohio), in a just-released statement, said he's disappointed in the Supreme Court's decision but also said the decision is the result of the checks and balances -- and that legislators still have a role to play.
House GOP leaders had moved to defend the Defense of Marriage Act in the courts after the Obama administration declined to enforce it.
Here's the statement from Boehner:
“Congress passed the Defense of Marriage Act on an overwhelmingly bipartisan basis and President Clinton signed it into law. The House intervened in this case because the constitutionality of a law should be judged by the Court, not by the president unilaterally. While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances. A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman.”
President Obama just spoke by phone to Kris Perry and Sandy Stier, the plaintiffs who challenged California's anti-gay marriage Proposition 8. The conversation was broadcast live on MSNBC, where the couple was being interviewed.
"We're proud of you guys and we're so proud to have this in California," the president said over a choppy cell phone connection. "And it's because of your leadership things are heading the right way. So you should be very proud today."
He added, "I hope you have a great celebration."
Obama is currently on his way to Senegal. He called Chad Griffin, the president of Human Rights Campaign, from Air Force One.
It’s an understatement to say this has been a huge day for the gay rights movement.
The Supreme Court dismissed the case on California’s 2008 referendum banning gay marriage on what could be termed a technicality, but offered a more sweeping justification for wiping out the key portion of the Defense of Marriage Act, the 1996 law that prevents same-sex married couples from sharing federal benefits such as Social Security or tax benefits.
“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 M. Kennedy said in the majority opinion, explaining that the federal law basically intruded upon the state’s right to confer privileges to married couples.
The explanation pretty much reflects what gay rights groups have been saying since Massachusetts became the first state to permit same-sex couples to wed in 2006: That the federal law essentially creates two classes of married people, one that gets federal benefits, and one that does not -- and that is unfair and unconstitutional.
The Proposition 8 decision is more modest but also sends a powerful signal. As you may recall, California’s governor and attorney general declined to defend the voter-approved initiative banning same-sex marriage when it was challenged in court. Proponents of Proposition 8 stepped in, but the court found the group did not have standing to appeal a District Court decision striking down Prop 8.
The justices sidestepped the question of whether the state was allowed to ban same-sex marriage, but the ruling suggests that the executive branch could have authority over this issue in the other states where gay marriage bans were approved by voters.
When she heard that a key part of the Defense of Marriage Act had been struck down, plantiff Edith Windsor declared, “I wanna go to Stonewall right now!” the New Yorker reports. The Stonewall Inn in New York's Greenwich Village was the site of historic riots for gay and lesbian rights in 1969.
Windsor then called a friend to say, “Please get married right away!”
She is holding a press conference at noon.
Today's Supreme Court decisions have been greeted with joy by gay marriage activists and supporters. The reaction is more muted on the other side, but some opponents are criticizing the decision.
"Marriage was created by the hand of God. No man, not even a Supreme Court, can undo what a holy God has instituted," said Rep. Michele Bachmann (R-Minn.). "What the Court has done will undermine the best interest of children and the best interests of the United States."
Bob Vander Plaats, an influential conservative evangelical leader in Iowa, also weighed in:
In DOMA, Kennedy was vintage Kennedy and ignored rational basis and scrutiny in rationalizing his anti-marriage opinion.
— Bob Vander Plaats (@bobvanderplaats) June 26, 2013
As the Post's Ed O'Keefe noted, House Speaker John Boehner (R-Ohio), who has pushed the Justice Department to enforce the Defense of Marriage Act, said he would weigh in later.
Updated at 3:36 p.m.
In his dissent to the decision declaring the Defense of Marriage Act unconstitutional, Justice Scalia argued that the Court is interfering where it should not.
"What ... are we doing here?" he asks. He calls the decision a "jaw-dropping ... assertion of judicial supremacy over the people’s Representatives in Congress and the Executive."
His contention is that because the plantiff, Edith Windsor, already won in a lower court, there is no injury to be remedied and thus it is not the Court's place to declare the law unconstitutional.
Moreover, he said, "the Constitution does not forbid the government to enforce traditional moral and sexual norms," citing his own dissent in Lawrence v. Texas, the case that declared sodomy bans unconstitutional. Scalia noted that he warned at the time that the Lawrence ruling could put same-sex marriage laws in danger, and in his dissent today he warns that the decision puts state gay marriage bans in doubt.
House Speaker John A. Boehner (R-Ohio) was wrapping up his weekly meeting with House Republicans when the U.S. Supreme Court issued its ruling.
That left him no time to review the decision before a brief press conference, which is normally held right after his meeting.
“I heard the decision, I’ve not had a chance to read it. Once we’ve had a chance to read it, I’ll have a response later,” he said in response to the first question asked.
House Republicans picked up defense of the federal Defense of Marriage Act when the Justice Department declined to do so in 2011. The GOP conference has since spent about $500,000 to former Solicitor General Paul Clement to defend the law on behalf of its supporters.
Boehner demurred when asked whether he had made any contingency plans in anticipation of Tuesday’s ruling.
“After I’ve read the decision, I’ll have something to say,” he said.
Today's decision effectively took the federal government out of the marriage-defining business, allowing states to make their own determinations.
So where is gay marriage legal? And what about civil unions?
The Post's graphics team lays it all out here:
In the wake of Wednesday’s Supreme Court decisions on gay marriage, the American Civil Liberties Union is launching a state-level campaign, spearheaded by GOP strategist Steve Schmidt, to enlist the support of Republicans nationwide in legalizing gay marriage.
“The key to full marriage equality now resides in the hands of Republican leadership and Republican elected officials, which is why our campaign working with Steve Schmidt and other Republican leaders becomes so critical at this crucial tipping point,” said ACLU executive director Anthony Romero in a phone interview Wednesday morning.
Romero said the ruling overturning the Defense of Marriage Act also marks the starting point of a major litigation effort to make same-sex marriage universal in the United States.
“In today’s a historic decision the court struck down DOMA on equal protection grounds, opening up the floodgates for litigation against laws discriminating against LGBT people,” he said. “The Court has also opened up the floodgates for state level advocacy to repeal the DOMAs that exist in 30 states and overturn laws in eight other states that deny same sex couples the right to marry.”
Wednesday’s decisions, he added, “are certainly a tipping point in the struggle for marriage equality, and it’s the beginning of the end of legally-sanctioned discrimination against LGBT individuals. But we’re not there yet, and now we’ve got to take it to the states, governors, legislatures and the hearts and minds of all Americans, Democrats and Republicans alike."
What happens when you type the word "gay" into Google today? A rainbow magically appears in the background.
This is what tech types call an "easter egg" -- a fun and often humorous animation that happens when certain search terms are used.
Among those who will be affected most dramatically by today's Defense of Marriage Act ruling are so-called bi-national gay couples.
These are same-sex couples where one member is a foreign citizen. Even if they were legally married in their states, the American spouse was barred by DOMA from sponsoring his or her partner for citizenship.
For years, activists have been lobbying judges and the federal government to stop deporting these partners, with limited success. Here is a recent piece from the Post on one of these couples.
“The Supreme Court’s ruling is a long overdue recognition that same-sex couples and their families deserve equality under the law and we celebrate with all of those who have fought to see this day come,” a coalition of gay and immigrant rights groups said in a statement.
The coalition includes the National Center for Lesbian Rights, GLAAD, the National Gay and Lesbian Task Force, United We Dream and Queer Undocumented Immigrant Project, GetEQUAL, the National Center for Transgender Equality, Equality Federation, Lambda Legal and the National Queer Asian Pacific Islander Alliance.
Updated at 12:38 p.m.
The Supreme Court has dismissed Perry v. Hollingsworth for lack of standing, in a decision written by Justice Roberts with Justices Scalia, Ginsburg, Breyer, and Kagan. Here is the decision.
The issue: California is not defending the law, and thus the petitioners do not have standing to defend it. That means the 9th Circuit decision judgment declaring Proposition 8 unconstitutional is vacated and that court is instructed to dismiss the case.
Proposition 8 is thus struck down based on an earlier state judge's ruling and same-sex marriages in California are likely to resume, but how that ruling will apply elsewhere will require further litigation.
"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," Roberts wrote.
Here's the full decision:
The Post's Ruth Tam has posted some Vines of gay marriage supporters' one-word reactions to the decision:
Updated at 11:14 a.m.
President Obama is on his way to Senegal, but White House spokesman Dan Pfeiffer said a statement is forthcoming.
We will release a statement from President Obama on the SCOTUS Rulings from Air Force 1 as we head to Senegal
— Dan Pfeiffer (@pfeiffer44) June 26, 2013
Today's decisions are particularly significant for seven members of Congress who are gay.
Sen. Tammy Baldwin (D-Wis.) became the first openly gay U.S. senator this year. And in the House, there are Reps. Jared Polis (D-Colo.), Mark Pocan (D-Wis.), Mark Takano (D-Calif.), David Cicilline (D-R.I.), Kyrsten Sinema (D-Ariz.) and Sean Patrick Maloney (D-N.Y.). (Sinema is the first member of Congress to identify as bisexual.)
Maloney got emotional during remarks Wednesday:
Below are reactions from the other members:
Baldwin: "Today the U.S. Supreme Court issued decisions in two historic cases that reflect the progress we have all witnessed across our country. This progress is defined by the ideal that more and more Americans want to leave to the next generation a country that is more equal, not less."
Polis: "Discrimination is just plain wrong. Today’s Supreme Court ruling should reinvigorate and reinforce our resolve to fight for justice. We cannot stand down until the country we love and honor respects and honors all of us."
Cicilline: “Today’s Supreme Court decisions affirm that bigotry and discrimination are inconsistent with our great American values and will not be tolerated in our country, and that, as we have expressed since the days of our founding, every American is created equal."
Sinema: "By ruling the Defense of Marriage Act unconstitutional, our nation's highest court has affirmed our basic promise to our citizens. Every American has the fundamental freedom to care for their family and can expect equal treatment from their government."
Updated at 2:00 p.m.
We'll know how the Supreme Court will rule on Proposition 8 shortly, but there's a hint in Justice Roberts' dissent in the Defense of Marriage Act ruling that that case will be dismissed on lack of standing.
"We may in the future have to resolve challenges to marriage definitions affecting same-sex couples," he writes. "That issue, however, is not before us in this case, and we hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry."
Hollingsworth v. Perry is the case challenging Proposition 8 in California.
The big headline Wednesday is that the Defense of Marriage Act was ruled unconstitutional.
But the underlying case -- United States v. Windsor -- is fascinating as well. It has to do with a woman who died in 2009.
Despite having been married to another woman two years earlier, the woman's spouse was served with a sizable federal estate tax bill (about $363,000) -- something that would not have been the case if they were husband and wife.
Here's SCOTUSblog's primer on the case -- in plain English.
The court has struck down the key portion of Defense of Marriage Act (DOMA), by a 5-4 decision.
Justice Anthony Kennedy, who is often the swing vote on the court, wrote the opinion.
The majority opinion ruled that the law "violates basic due process and equal protection principles applicable to the Federal Government."
"The avowed purpose and practical effect of the law here in question 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," Kennedy wrote.
DOMA effectively outlawed gay marriage at the federal level, but the Obama Administration has decided not to enforce it in recent years.
A different section of DOMA -- the one that says states do not have to recognize same-sex marriages performed elsewhere -- was not challenged in this case and remains in effect.
Here is the full decision:
Updated at 1:28 p.m.