- The Washington Times - Wednesday, June 26, 2013

In a banner day for supporters of gay marriage, a closely divided U.S. Supreme Court struck down a federal provision that denied benefits to legally married same-sex couples and, in a separate case, cleared the way for California to resume offering marriage licenses to gay couples.

Gay-rights groups cheered the two 5-4 rulings issued on the final day of the court’s term, but lamented that the high court stopped short of invalidating laws and constitutional bans in the dozens of states where gay marriage remains illegal. President Obama also quickly hailed the court’s actions for striking down what he called “discrimination enshrined in law.”

Traditional-marriage groups condemned the rulings and vowed to keep up the fight against gay marriage at the state level. California officials said the state could resume sanctioning gay unions within the month after the ruling.

The 5-4 ruling on the federal case, written by the court’s longtime swing vote Justice Anthony M. Kennedy, overturned part of the 1996 Defense of Marriage Act (DOMA) and was by far the more far-reaching legal decision. The court’s four more liberal justices joined Justice Kennedy in the majority in the case, the U.S. v. Windsor.

The ruling struck down a central provision of DOMA and ensures that legally married gay couples will be treated the same as opposite-sex married couples in federal programs, including Social Security survivor benefits, military and health payments, and filing status in federal income taxes.

It also means Edith Windsor, the New York lesbian widow who was required to pay $363,000 in estate taxes because the government did not recognize her as the surviving spouse, will get her refund.

SEE ALSO: Obama administration has lost two-thirds of Supreme Court cases

Shortly after Wednesday’s ruling was announced, the 83-year-old plaintiff received a congratulatory call from Mr. Obama. She thanked the president for “coming out for us,” said a New Yorker reporter who was with her.

In the second opinion, which essentially struck down California’s 2008 voter initiative banning gay marriage known as Proposition 8, gay-rights supporters hailed the ruling, but both sides noted that the decision authored by Chief Justice John G. Roberts Jr. was far more limited, focusing on the lack of legal standing for those arguing to preserve the voter initiative.

“While we celebrate the victory for Californians today, tomorrow we turn our attention to the millions of” gay, bisexual and transgender people “who don’t feel the reach of these decisions,” said Chad Griffin, president of the Human Rights Campaign, which helped bring together the legal team that won in the Proposition 8 case.

“This is a great day for America,” said David Boies, a lead attorney for the American Foundation for Equal Rights, which represented the two same-sex couples who sued to overturn Prop 8. The high court didn’t get to address the merits of their case, said Mr. Boies, but someday, when the case is back before the U.S. Supreme Court, “marriage equality will be the law throughout this land.”

Outside the Supreme Court, thousands of gay-marriage advocates joyfully responded as the news leaked out on a steamy Wednesday morning.

“It’s amazing. Because now in 10 or 20 years, whenever I want to get married, hopefully the laws will stand by then [and] I can have full and equal rights, just like the Constitution says,” said Casey Syron, a college student who is also a gay Republican.

SEE ALSO: Traditional-marriage supporters vow to fight on for DOMA, California Prop 8

To the relief of traditional-marriage advocates, neither Supreme Court ruling asserted a constitutional right to same-sex marriage, nor did they add “sexual orientation” to the types of cases that must be given so-called “heightened scrutiny” by courts.

“The court didn’t redefine marriage for the nation. We will work to restore clear marriage policy at the national level and get our laws defended at every level. But in the meantime, today’s decision from the court means that our national debate about marriage will continue,” said Jim DeMint, president of the Heritage Foundation.

DOMA provision struck down

Justice Kennedy’s decision in DOMA embraced the argument of gay-rights advocates that the law was unconstitutional under the principles of due process and equal protection in the Fifth Amendment.

DOMA told same-sex couples “and all the world, that their otherwise-valid marriages are unworthy of federal recognition,” wrote Justice Kennedy, who was joined by Associate Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The justices took a swipe at Congress and President Clinton, who signed the legislation in 1996, saying DOMA’s “avowed purpose and practical effect” were to impose “a disadvantage, a separate status,” and thus “a stigma” on same-sex couples, and wrote “inequality into the entire United States Code.”

But the dissenting justices warned — angrily, at times — their colleagues that they went too far.

Congress and Mr. Clinton did not enact DOMA because of bigotry, Chief Justice Roberts said in his dissent, adding that he did not think the high court even had jurisdiction to hear the Windsor case.

“The majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited,” Justice Antonin Scalia wrote in his dissent, which was joined by Justice Clarence Thomas, and in part by Chief Justice Roberts.

Based on the way DOMA was overturned, Justice Scalia added, “[h]ow easy it is, indeed, how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

In Congress, Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, praised the high court and said he and his colleagues would work to fully repeal the federal law against gay marriage.

A likely side effect of the Windsor ruling will be more lawsuits challenging statutes that treat gay citizens differently.

“By overturning DOMA, the Supreme Court has commandeered the role of voters and their elected representatives, and turned the definition of marriage over to unelected judges where this will now be litigated in the courts for years to come,” said Rep. Steve Scalise of Louisiana, chairman of the House Republican Study Committee.

In addition, the decision on the federal law likely will put pressure on lawmakers in states with civil unions or domestic partnerships — including New Jersey, Illinois and Hawaii — to legalize gay marriage. Under Windsor, federal benefits are available only to gay couples in “lawful marriages,” not other kinds of unions.

California, where gay marriage was briefly legal in 2008, would be the 13th state, along with the District of Columbia, to allow same-sex couples to marry and would raise the share of the U.S. population in gay-marriage states to 30 percent. Six states have adopted same-sex marriage in the past year.

Nearly three dozen states have laws or constitutional provisions specifically limiting marriage to the traditional union of one man and one woman, and Wednesday’s court rulings could leave the country a confusing patchwork of laws on the definition of marriage.

Punting on Prop 8

In its 5-4 ruling in the California Proposition 8 case known as Hollingsworth v. Perry, the high court ruled that a private group did not have the right to appeal a statute when state officials refused to do so.

Dennis Hollingsworth and Protectmarriage.com had not suffered injuries under the law and could not act as “agents of the people,” wrote Chief Justice Roberts, who was joined by Justices Scalia, Ginsburg, Breyer and Kagan.

“No matter how deeply committed petitioners might be to upholding Proposition 8, that is not a particularized interest sufficient to create a case or controversy under Article III,” he said.

Noting that the California Supreme Court had ruled that Mr. Hollingsworth and his allies had standing to defend their amendment after California state officials refused to do so, the high court said that wasn’t sufficient.

“Standing in federal court is a question of federal law, not state law,” Chief Justice Roberts wrote. States cannot just “issue a ticket to the federal courthouse” to private parties who otherwise lack standing.

In a dissenting opinion, Justice Kennedy said there was “no basis” for the high court to set aside the California Supreme Court’s ruling on Mr. Hollingsworth and his allies’ standing.

“The very object of the initiative system is to establish a law-making process that does not depend on state officials,” he wrote, joined by Justices Thomas, Alito and Sotomayor.

If the only people who can defend a statute are the same parties that the statute seeks to circumvent, that gives the governor and attorney general “de facto veto” power over the people, Justice Kennedy wrote.

The Hollingsworth decision vacated a 9th U.S. Circuit Court of Appeals ruling and sent it back to a lower federal court, which also overturned Proposition 8.

“Now we will be married, and we will be equal to every other family in California,” said Kristin Perry, who stood outside the Supreme Court building with her fiancee, Sandy Stier, and co-plaintiffs Paul Katami and Jeff Zarrillo.

But not far from them, missionary Ronald Brock said he grieved for the nation. “God said very clearly in Galatians: ‘God is not mocked. He will not be mocked.’ We’re going to pay a price.”

Annie Yu contributed to this report.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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