SCOTUS opens door for gay marriage nationwide

Posted Wednesday, June 26, 2013 in Analysis

SCOTUS opens door for gay marriage nationwide

by Gina Hamilton

Okay, let's say you're a same-sex couple, living in a state that doesn't allow you to get married.  In light of the two recent Supreme Court rulings, declaring the Defense of Marriage Act unconstitutional and refusing to accept the non-governmental 'defendants' in the California Proposition 8 case, the Court has done something remarkable.

It's made gay marriage legal everywhere.

"But wait," you say, "I live in Kansas and we can't get married here."

No, but you can get married in any state that allows gay marriage.  I recommend Maine, because it's nice in the summertime and there are plenty of officiants around to support your nuptials. But other states - Iowa comes to mind -  may be closer.  Anyway, this is how it now works:

Once you are married, you have federal marriage rights.  Your marriage, whether you get married in Maine or California or Maryland or any of the 13 states plus D.C. where it is legal, is federally recognized, even back in Kansas. You'll file federal taxes as a married couple, and since state taxes are based on your 1040s, Kansas will jolly well have to deal with it.

Kansas can't nullify your marriage, so they have to recognize it in any way that matters to you, especially after Obamacare is enacted early next year, just like they'd have to recognize any other marriage whose partners married anywhere else. Otherwise, they're in violation of the fifth and fourteenth amendments.  Eventually, some state or other is going to balk at that, and the partners will take the state to court and have the states' ban overturned on 14th amendment grounds, but if the states don't want that to happen, they'll just shut up and give the partners their state pensions quietly or deal with child custody in an equitable and fair way.

But most likely, it won't even get that far.  That's because the commerce clause is often ... very often ... interpreted to mean that economic things that are permissible in one state ... like two same-sex partners using one another's credit history to buy a car or a house ... has to be permissible in all the states.  Otherwise it would just be too-too difficult for the poor business that has to keep track of all these things.

And in any case, you ARE legally married, and Kansas can't say you aren't.

So in the coming days, watch as states with bans or constitutional amendments opposing same-sex marriage begin to backtrack based on the Supreme Court ruling, and those who are on the fence to do nothing or begin to move toward regularizing the same-sex unions in their own states. 

The Supreme Court, however, defeated DOMA using an incredibly broad tool ... the fifth amendment to the Constitution, which says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It was that last part, about taking private property for public use, that the Court struck down.  In the case that prompted the striking down of DOMA, Edie Windsor, legally married to her partner in Massachussetts, was charged hundreds of thousands of dollars in inheritance taxes that, as a married person, she should not have had to pay when her partner passed away.  She'll get her money back; she'll also know that her case changed the rules for everyone else.

But Justice Anthony Kennedy, who wrote the majority opinion, went further:

The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.


In other words, he wrote that the only purpose for DOMA was to deny equal rights to a minority ... in this case, same-sex couples ... and that equal protection applies, just like it did in the Lawrence v. Texas decision in 2003, and ... dare we say it, the Loving v. Virginia decision in 1967.  The only thing preventing national same-sex unions after Loving was the fact that the gay sex act was illegal in many states.  That was addressed in the Lawrence decision in 2003, but by that time, DOMA had been made law. 


With DOMA now history, watch for some enterprising couple ... perhaps you, there in Kansas ... to ask that your marriage be treated the same as any other marriage based on the Loving precedent.  It is long, long past time for full marriage equality across America.

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