June 26, 2013 6:52 pm

Court rulings reflect a sea change in US

Gay rights activists gather outside the US Supreme Court building in Washington, DC©AFP

The plaza in front of the Supreme Court was awash with rainbow flags and “marry who you love” signs on Wednesday, as hundreds of gay Americans celebrated two historic victories.

“Seven years ago we literally had to leave the country to make a legal commitment to each other,” said John Becker, a 28-year-old who went to Canada to marry his husband. “Now I come to the Supreme Court in 2013 and hear that for the first time the federal government recognises the reality, which is we are not strangers, we are spouses.”


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With Wednesday’s decisions, the highest court in the US has taken a position on a controversial social issue that has divided the country for years, and continues to be a cultural faultline.

The Supreme Court did not declare that gay and lesbian Americans have a constitutional right to marry. It did, however, say that the “equal dignity” of legally married same-sex couples was being violated when the federal government recognised only heterosexual marriages.

Five of the justices – Justice Anthony Kennedy, the swing vote on the bench, and the four liberals – ruled that the 1996 Defense of Marriage Act, which defined marriage as between a man and a woman, was unconstitutional for depriving legally married gay couples of this recognition.

Under Doma, they were not eligible for the 1,110 federal benefits that straight couples enjoyed. Twelve states and the District of Columbia now allow same-sex weddings.

President Barack Obama immediately ordered his administration to review all relevant federal statutes to implement the decision “swiftly and smoothly”.

Chuck Hagel, the defence secretary, said that the Pentagon planned 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,” he said.

With the second decision, the justices essentially declared that a lower court’s invalidation of California’s ban on same-sex marriage, which was passed in a ballot initiative in 2008, remained in effect.

The court ruled that the proponents of the ban did not have the legal standing to argue that the ban should remain, when California’s state government was choosing not to.

Notably, the court did not divide along ideological lines on the second decision. Chief Justice John Roberts, a conservative, was joined by three liberals and one other conservative in forming the majority.

Although the decisions do not declare same-sex marriage is a right, they reflect a sea change in the US. A majority of Americans – including Mr Obama – now support marriage equality.

“Sometimes you have to listen to the music rather than the individual notes,” said Tom Goldstein, editor of the Scotus blog. “The majority of this otherwise conservative court has said that these individuals deserve equal treatment.”

The Doma decision in particular reiterated that same-sex marriage was an issue for individual states and will likely give a boost to those state legislatures that were already moving towards allowing same-sex weddings, Mr Goldstein said.

Sometimes you have to listen to the music rather than the individual notes. The majority of this otherwise conservative court has said that these individuals deserve equal treatment

- Tom Goldstein, editor of the Scotus blog

There will, however, continue to be strong opposition to the concept of same-sex marriage in the more socially conservative states of the US.

“Today’s Supreme Court opinions on marriage are a stunning and indefensible display of judicial activism,” said Ralph Reed of the Faith and Freedom Coalition, an evangelical Christian group.

But the rulings particularly cheered liberals, coming just a day after the court, with Justice Kennedy siding with the four conservatives, overturned a key provision of the Voting Rights Act, designed to ensure that states with a history of racism could not discriminate against voters.

However, legal scholars warned against drawing any broader conclusions about the court’s ideological leanings, noting that Justice Kennedy has been consistently in favour of marriage equality, even as he continues to hold conservative views on other issues.

The Doma decision, written by Justice Kennedy, noted the controversy surrounding gay marriage and referred the matter back to the states.

That makes this decision different from Roe v Wade, the controversial 1973 ruling that legalised abortion and was passed by a 7-2 majority, said Martha Davis, a law professor at Northeastern University.

“The opinion acknowledges the controversy but avoids a Roe-type eventuality by saying that this is a state issue,” she said.

The next pressing issue is likely to be whether states that do not allow same-sex marriage recognise gay couples who were wed in states that do, Ms Davis said.

Barney Frank, the former Massachusetts congressman who married his husband a year ago, said outside the court yesterday that it was just a matter of time until the US reached full parity on marriage.

“I think the discrimination against same sex marriage will be seen as the same as the discrimination against interracial marriage,” he said.

Additional reporting by Gabriel Muller

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