“We can celebrate for our colleagues and loved ones in California and the twelve other states affected by this ruling today,” Graham said. “Tomorrow we begin the process of building a movement to recognize our own marriages here in Georgia.”
In the most sweeping of today’s decisions, the Supreme Court ruled 5-4 that the Defense of Marriage Act’s ban on federal recognition of same-sex marriages is unconstitutional.
President Obama, who had instructed his Justice Department not to defend DOMA, praised the ruling.
“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, ” Obama said. “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.”
The ruling means legally married same-sex couples, whose marriages are recognized where they live, should receive federal marriage recognition as well.
It remains uncertain what the decision means for gay couples who travel to states where it is legal to marry, but live in states like Georgia that refuse to recognize those marriages.
In a separate case, Hollingsworth v. Perry, the court also ruled 5-4 that supporters of California’s Proposition 8, the ballot measure that ended gay marriage in the state, did not have standing to defend the law in court.
In a victory for gay Californians, the court remanded the case back to the district court, which had previously thrown out the law.
Today’s rulings came on the 10th anniversary of the Supreme Court’s decision in Lawrence v. Texas, which struck down sodomy laws that had been used to discriminate against gay people.
“Exactly 10 years ago today, the Supreme Court issued an historic ruling striking down state laws that branded gay people as criminals. Today, it once again struck down a law passed by legislators who sat in moral judgment against LGBT people, this time condemning them in the eyes of the entire nation,” said Jon Davidson, legal director for Lambda Legal. “DOMA was unconstitutional when Congress wrote it and, with today’s ruling, its bruising hand has been lifted.
“This is a huge victory for married same-sex couples and their families because it will affect almost every facet of life from health care to retirement to taxes.”
Impact in Georgia
Georgia Attorney General Sam Olens said today’s DOMA ruling has no impact on Georgia.
“Today’s decision rests on the basic assumption – with which I strongly agree – that the power to define marriage is a power traditionally reserved to the States,” Olens said in a statement. “The decision does not affect existing state definitions of marriage; in fact, it explicitly says that it is limited to marriages recognized by states as lawful. I agree with the Chief Justice that this limitation means what it says.
“The definition of marriage adopted by Georgia’s voters is unaffected by today’s decision,” Olens said.
The DOMA decision does not allow gay Georgians to marry, but how it impacts those who have married in other states is uncertain.
Dan Bloom, a gay attorney with Pachman Richardson LLC Family Law Attorneys, said what the DOMA ruling means for Georgia is “the unknown question right now.”
Georgia has a constitutional amendment in place that prohibits same-sex marriage and also does not recognize same-sex marriages from other states. The ruling today does not change that. But what happens if a Georgia couple gets married in a state that does recognize same-sex marriage?
“The question that is still out there is if a couple gets married in New York and moves to Georgia, what does that mean? If the couple was receiving Social Security benefits in New York, do they stop getting them when they move here to Georgia? That’s the question still out there,” he said.
“None of us know this. The question is what is Georgia going to do when it has to deal with some of this stuff,” he added. “Right now what’s certain is the people in 12 states that allow same-gender marriage — they have all federal protections of marriage.”
Another thing that’s certain — there will be more lawsuits.
“There’s no question the result of this is more litigation,” Bloom said.
“If you get married in New York [where you receive federal protections] and move to Georgia and then are being denied equal protection, which is whole purpose of DOMA case … we just don’t know yet,” he said.
The Supreme Court in its ruling purposely left some questions unanswered, Bloom said.
“If they had specifically said the right is transportable, that would be equivalent to legalizing same-gender marriage — which is not what they did,” Bloom explained.
It also will likely depend on the kind of benefit, Bloom said.
The Department of Defense, for example, states spousal benefits are decided based on where a person gets married. In Bloom’s opinion, that means veterans, for example, now living in Georgia that were legally married in a state that recognizes same-sex marriage will receive federal marriage benefits.
With the IRS, however, benefits are not decided by where you were married but by where you live. So those in Georgia who married in another state are not able to receive federal marriage benefits.
“This is where things get tricky,” he said. “As best I can tell, it depends on the benefit itself. The ruling may avail people in Georgia to some benefits, but certainly not to all benefits. This is not sweeping and it does not mean those in Georgia will get all the federal benefits even if they get married in a state that recognizes same-gender marriage.”
Bloom said he will continue to advise his clients who are same-sex couples to get all the contractual protections — such as wills, health care directives — provided under Georgia law.
“You need to avail yourself to all the protections available in Georgia that you can until this is all fleshed out,” he said.
Tim Holbrook, associate dean of faculty and law professor at Emory University, wrote an amicus brief on behalf of NFL stars Chris Kluwe, formerly of the Minnesota Vikings, and Brendan Ayanbadejo of the Super Bowl Champion Baltimore Ravens, urging the Supreme Court to sack California’s Proposition 8.
“For Georgia, this does nothing,” Holbrook said of the DOMA ruling. “The court made it crystal clear they are not deciding on a national constitional right to same-sex marriage.”
The next challenges to come from Georgia would be if someone legally married in another state, such as New York, sued in Georgia federal district court to have their marriage legally recognized, Holbrook explained. This could be a case very much like Edie Windsor’s case that led to DOMA being ruled unconstitutional — Windsor sued because she was forced to pay an enormous tax after her wife died because their marriage wasn’t recognized by the federal government. This kind of lawsuit would fall under due process or equal protection.
Another challenge possible in Georgia would have a couple try to get married, be denied, and then sues for the right to marry.
“That’s would be the head-on challenge,” Holbrook said.
But for right now, Georgia is not going to be forced to recognize any same-sex marriages and same-sex couples will not be receiving federal benefits, he explained.
Lambda Legal is taking a lead role in trying to determine what will happen in states where same-sex marriage is not recognized.
“Key details remain to be worked out over the coming months, including the implications for legally married same-sex couples living in states that deny their true marital status,” Davidson said.
“Lambda Legal and our sister organizations will work with Obama Administration officials and will continue to pursue legal and administrative actions as may help to clarify these matters and to implement both of today’s judgments against discrimination,” he said.
DOMA: ‘Principal purpose is to impose inequality’
Justice Anthony Kennedy wrote the majority decision striking down Section 3 of the Defense of Marriage Act, joined by Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer.
The four justices who dissented were Chief Justice John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito.
The majority decision relies heavily on the rights of individual states to govern marriage laws, noting that by refusing to recognize legal same-sex marriages as valid under federal law, DOMA directly and intentionally undermines a state’s authority.
The case was brought by New York resident Edith Windsor, now 83 years old, who married her partner of more than four decades, Thea Spyer, in Canada in 2007. New York recognizes same-sex marriage, although the federal government does not.
When Spyer died in 2009, Windsor was hit with an inheritance tax bill of more than $360,000, which she would not have owed if the government recognized her marriage.
“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,” the decision states.
The decision also directly confronts the intent of DOMA to discriminate against same-sex couples.
“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence,” the majority opinion states.
DOMA was defended by the Bipartisan Legal Advisory Group, a committee led by Republicans from the U.S. House of Representatives, after President Obama’s Justice Department refused to defend it.
“The arguments put forward by BLAG are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married,” the majority opinion continues.
Notes the court, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.”
PROP 8: No standing for gay ban supporters
The court’s second gay rights decision today effectively allows gay couples to resume marrying in California.
Gay couples gained marriage rights in California in 2008 thanks to a ruling by the California Supreme Court. But in November 2008, the state’s voters approved Proposition 8, which amended the California Constitution to only recognize marriage between and a woman.
A district court judge ruled the measure violated federal guarantees of Due Process and Equal Protection.
A three-judge panel of the Ninth Circuit Court of Appeals upheld that ruling on the narrower grounds that California, having granted same-sex couples all of the legal rights of marriage, could not provide a legitimate reason for revoking an existing right.
The case was brought by two gay couples represented by the American Foundation for Equal Rights. Prop 8 was defended by supporters of the measure after the California governor and attorney general refused to argue in favor of it.
Today, the Supreme Court held that the supporters had no right to bring the appeal.
“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,” reads the majority opinion.
The decision should mean that same-sex couples will be able to resume marrying in California.
“Because of our efforts together, California joins 12 other states and our nation’s capital in recognizing the fundamental right of gay and lesbian couples to marry,” leaders of the American Foundation for Equal Rights, which brought the case, said in a statement.
“As the nation’s most populous state, California substantially increases the number of Americans — approximately 94 million people, or 30 percent of the United States population — who live in a state with marriage equality.”
In a bit of an unexpected line-up, the five justices in the majority were Chief Justice John Roberts, who wrote the opinion, Stephen Breyer, Elena Kagan, Ruth Bader Ginsburg and Antonin Scalia.
Dissenting justices were Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor.
Here are the full opinions: