06/26/2013 02:06 pm ET Updated Aug 26, 2013

Divided U.S. Supreme Court Gives Key Victories To Same Sex Marriage

Two Landmark Gay Marriage Cases Decided
In United States v. Windsor a deeply divided Supreme Court held 5-4, largely along partisan lines, that a key central section of the 1996 federal Defense of Marriage Act (DOMA) is unconstitutional. DOMA denied federal benefits and recognition to gay and lesbian couples married under state laws. Currently 12 states and Washington, D.C. recognize gay marriage and the decision will have an immediate impact on 130,000 same sex couples married under those laws. While the decision does not force states without laws allowing gay couples to wed to do so, it does require that same sex couples married under state laws get equal footing under the 1,100 federal laws that involve marriage.

In another 5-4 decision in Hollingsworth v. Perry, authored by Chief Justice John Roberts the Supreme Court refused to rule on the merits in another closely watched gay marriage case. Hollingsworth involves a voter approved California referendum, Proposition 8, that rescinded same sex marriage rights previously approved by courts. The Supreme Court ruled today that the private parties appealing a lower federal court ruling invalidating the proposition's marriage ban had no standing to do so after Democratic state officials declined to appeal themselves. Unlike the DOMA decision there were no partisan lines with regard to how the justices voted, with the Chief Justice being joined not only by fellow conservative Antonin Scalia, but by Democratic appointees Ginsburg, Breyer, and Kagan. In a matter of fact statement Chief Justice Roberts contended that those attempting the appeal suffered no harm from the a reinstatement of same sex marriage:

That party must also have "standing," which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.

As a practical matter the ruling lets stand the 136 page federal trial court decision by United States District Judge Vaughn Walker of San Francisco holding that same sex couples in California can marry after certain procedural steps are taken. Walker, a gay Republican appointee wrote in 2010:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Justice Kennedy Provides Gay Community Victory for Today, Hope for Future
The Windsor decision on the DOMA law involved a New York woman, Edith (Edie) Windsor, who faced additional federal taxes of $363,000 after her same sex spouse died in 2009 after four decades in a committed relationship. Their 2007 marriage in Canada was recognized under the laws of New York State, but not under DOMA, which limited recognition of marriage under federal law to only those between a man and a woman. Two iconic statements came on the day of oral argument in March. One from Justice Ruth Bader stating, "You are really diminishing what the state has said is marriage....There's two kinds of marriage, there's full marriage and then there's sort of skim milk marriage." The other defining moment of that day was that of a demure elderly woman barely reaching the microphone speaking from the heart on the steps of the Supreme Court:

When my beautiful sparkling Thea died four years ago I was overcome with grief. Within a month I was hospitalized with a heart attack....broken heart syndrome...People asked me why get married...Marriage is is magic...

Justice Kennedy, a Harvard Law School educated, Catholic Reagan appointee from California, issued his majority opinion in Windsor on the tenth anniversary of another opinion where he affirmed protection for gays. He also authored a 1996 decision in another gay rights case, Romer v. Evans, where the Court invalidated an amendment to the Colorado constitution that stripped gays and lesbians of the protections of local anti-discrimination laws. In the 2003 Lawrence v. Texas case Kennedy, writing for the majority overturned an earlier decision and invalidated laws in 14 states that criminalized consensual sexual activity between competent adults, including gays and lesbians:

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.

In June 1967 the United States Supreme Court in Loving v. Virginia struck down laws banning interracial marriage in over one dozen states holding among other things, marriage to be a fundamental right. When a right is categorized as fundamental the ability of government to interfere with it is severely restricted, though not necessarily eliminated. The government may in fact apply rules that interfere with a fundamental right like marriage, religious exercise, or speech if the government's conduct survives what is called the "strict scrutiny" test. That test requires that government's restriction on an individual's fundamental right advance a compelling governmental interest in the least intrusive manner possible.

Today, Kennedy again vigorously laid out the importance of the marital relationship and the right of states to define and impart those rights to minorities without undue interference from the federal government.

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. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. "'[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.'" Romer v. Evans, 517 U. S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32, 37-38 (1928)).....
The Federal Government uses this state-defined class for the opposite purpose--to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect...

Kennedy further argued that the law must protect important marital rights equally:

For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality....
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. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this 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.

Contrasting Views on Rulings
In a vigorous dissent Justice Scalia contends that the court should have let DOMA stand as a legitimate exercise of the legislature in its power to among other things, enforce morality:

As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol...

He also chided the majority for not exactly spelling out the basis of the majority's authority to throw out the law. He questioned whether it arose out of protecting the individual marriage right of couples generally or out of providing gays and lesbians with some heightened coverage specific to them under the Fourteenth Amendment's Equal Protection clause:

Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court's nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due- process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a " 'bare . . . desire to harm' " couples in same-sex marriages. Ante, at 20. It is this proposition with which I will therefore engage.

Today's rulings did not with finality settle the ultimate question as to whether states can refuse to extend marital rights to same sex couples, but the wording of the majority has recognized that when states do so, those rights must be treated the same for all marriages. At least for today states that recognize same sex marriage will continue to do so, while those that don't, will not be forced to do so by these decisions. Same sex marriage advocates have voiced their plans to continue to expand marriage coverage through efforts at the state level in light of today's ruling. The ruling also means that federally, estate tax, educational, veterans, health and immigration benefits among many others must be extended to lawfully married same sex couples in the same way that they are to all other married couples. Gay rights advocates have reason to celebrate not only today's ruling, but the practical realities that both the majority of the nation, particularly 68% of young people, and a majority of justices are now prepared to recognize gay marriage as a permanent institutional fixture in American life, that does not trample on the rights of others who disagree. President Obama called some of the litigants by phone from overseas to applaud their "courage."

The Family Research Council's Tony Perkins, a vigorous opponent of legal protections for gays and lesbians offered a contrasting opinion:

While we are disappointed in the Supreme Court's decision to strike down part of the federal Defense of Marriage Act (DOMA), the court today did not impose the sweeping nationwide redefinition of natural marriage that was sought. Time is not on the side of those seeking to create same-sex 'marriage.' As the American people are given time to experience the actual consequences of redefining marriage, the public debate and opposition to the redefinition of natural marriage will undoubtedly intensify.

House Speaker John Boehner expressed his disappointment with today's rulings and conservative Congressman Tim Huelskamp stated that he will attempt to resurrect the invalidated statute, a difficult effort in light of today's decisions. After reading the opinions Hollingsworth counsel David Boies offered this assessment on the courthouse steps: "Marriage equality will be the law of the land...The next step is to translate the promise..that every citizen in every state has the right to marry the person that they love."

Editor's note: Brian Levin received the Block Civil Liberties Award from Stanford Law School and has authored Supreme Court briefs representing LGBT organizations and has testified before Congress about legal protections for the LGBT community.