Democracy in America | Gay marriage

Windsor's knot

The Supreme Court strikes two blows for gay marriage


COMMITTED souls often pitch tents on city streets and sleep rough overnight to be first in line for a Lady Gaga concert. You would not expect legal proceedings stemming from a tax dispute to generate such excitement. But people began lining up outside the Supreme Court on the evening of June 25th to hear its rulings on gay marriage the next day.

One case, Hollingsworth v Perry, considered Proposition 8, a ballot initiative passed in California in 2008 that defined marriage in that state as a union between one man and one woman. The other, United States v Windsor, concerned the Defence of Marriage Act (DOMA) of 1996, which barred the federal government from recognising gay nuptials. The Obama administration declined to defend DOMA; Californian officials refused to fight a state-court ruling striking down Proposition 8. That left Proposition 8’s defence to its original sponsors, led by Dennis Hollingsworth, a former state senator from San Diego, and DOMA’s to House Republicans.

In a 5-4 ruling, the court found DOMA unconstitutional. The case was brought by Edith Windsor, who married her partner Thea Spyer in 2007, after 44 years together. Though they married in Canada they lived in New York, which allows same-sex marriage. When Ms Spyer died in 2009, she left her estate to Ms Windsor. Had Ms Spyer been Mr Spyer, Ms Windsor would have inherited the lot tax-free. But because DOMA barred the federal taxman from recognising their marriage, Ms Windsor was whacked with $363,053 in estate taxes.

She sued, arguing that DOMA violated fifth-amendment principles of equal protection under the law. The court’s four liberal jurists, along with Anthony Kennedy, the court’s swing voter, agreed. “DOMA seeks to injure the very class New York seeks to protect,” Mr Kennedy wrote, and “a bare congressional desire to harm a politically unpopular group” cannot justify such treatment. The ruling also affirmed that states may define and regulate marriage as they see fit. DOMA, the justices complained, created “two contradictory marriage regimes within the same state” (or as Ruth Bader Ginsburg, a liberal justice, quipped during oral arguments, it created “two kinds of marriage; the full marriage, and then this sort of skim-milk marriage”).

Antonin Scalia read his scathing dissent from the bench. He chastised the majority for ignoring the will of Congress, though he had been happy to do the same a day earlier, when he voted to invalidate a plank of the Voting Rights Act that Congress had re-authorised in 2006.

The repeal of DOMA means that same-sex couples in states that recognise gay marriage will have equal access to more than 1,100 federal benefits—and burdens—that apply to other married couples. For a start, Ms Windsor will get back her $363,053.

In the Proposition 8 case, the court ruled 5-4 that Mr Hollingsworth lacked standing to bring a case. State officials did not defend Proposition 8 when a California district court found it unconstitutional and ordered officials not to enforce it in 2010. Chief Justice John Roberts, writing for the majority, said that the Supreme Court "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.”

This decision leaves the California court’s ruling in place, which counts as a victory of sorts for gay-rights supporters. It clears the way for same-sex marriage in America’s most populous state.

Still, some hoped the Supreme Court would conclude, like the district court, that same-sex marriage bans violate the 14th amendment’s equal-protection clause. Such a ruling would have made gay marriage legal throughout America, just as Roe v Wade in 1973 made abortion legal nationwide despite the objection of many states.

But that could have provoked a backlash, just as Roe did. The court’s narrow, technical ruling keeps the fight for gay marriage at the state level, where supporters have been winning. When California’s voters approved Proposition 8 in 2008, gay marriage was legal in just two states: California and Massachusetts. Today it is legal in 13, plus the District of Columbia, with more to come.

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