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The battle for same-sex marriage in the US enters the home stretch The battle for same-sex marriage in the US enters the home stretch
(3 months later)
In two decisions issued on the final day of its 2012-2013 term, the US supreme court ruled that the federal government must accept the validity of same-sex marriages that are recognized under state law, and eliminated the barrier to implementation of a lower court ruling against Proposition 8, which barred same-sex marriage in California. Widely anticipated yet still wildly celebrated, one opinion was the first supreme court decision striking down a federal statute on the ground of anti-gay discrimination, and the second – once it is processed through the lower courts – will restore marriage for gay couples in California, where 12% of America's population lives.In two decisions issued on the final day of its 2012-2013 term, the US supreme court ruled that the federal government must accept the validity of same-sex marriages that are recognized under state law, and eliminated the barrier to implementation of a lower court ruling against Proposition 8, which barred same-sex marriage in California. Widely anticipated yet still wildly celebrated, one opinion was the first supreme court decision striking down a federal statute on the ground of anti-gay discrimination, and the second – once it is processed through the lower courts – will restore marriage for gay couples in California, where 12% of America's population lives.
A Republican Congress enacted the so-called Defense of Marriage Act (DOMA) in 1996, a few months before a presidential election, thus forcing President Bill Clinton to either sign it and alienate his gay supporters or veto it and enrage what was then a large majority of voters who supported it. Now a majority of Americans support marriage equality (though, the level of support varies significantly by region), and President Clinton and numerous others have recanted their support for Doma. Yesterday, a majority of supreme court justices cited the name of the law as evidence of its unconstitutionally discriminatory purpose.A Republican Congress enacted the so-called Defense of Marriage Act (DOMA) in 1996, a few months before a presidential election, thus forcing President Bill Clinton to either sign it and alienate his gay supporters or veto it and enrage what was then a large majority of voters who supported it. Now a majority of Americans support marriage equality (though, the level of support varies significantly by region), and President Clinton and numerous others have recanted their support for Doma. Yesterday, a majority of supreme court justices cited the name of the law as evidence of its unconstitutionally discriminatory purpose.
LGBT rights advocates had hoped for even more: a decision holding that all state law bans on marriage violate the US Constitution. As many expected, however, the supreme court stopped short of upending laws in the 37 states (as of 1 August) that prohibit same-sex marriage. But because the ruling in the Prop 8 case addressed only the standing of the party supporting Prop 8, yesterday's decision simply delays the day of reckoning when the court must confront that question.LGBT rights advocates had hoped for even more: a decision holding that all state law bans on marriage violate the US Constitution. As many expected, however, the supreme court stopped short of upending laws in the 37 states (as of 1 August) that prohibit same-sex marriage. But because the ruling in the Prop 8 case addressed only the standing of the party supporting Prop 8, yesterday's decision simply delays the day of reckoning when the court must confront that question.
The two opinions reflect a new height in the legal and political sophistication of LGBT rights organizations, who have masterminded a campaign to legalize gay marriage with a multidimensional strategy of litigation, legislation, media, selective support of politicians and the creation of a voting block that, even if small, has become essential to the Democratic party's successes in key states and nationally. The sense that marriage equality is the civil rights issue of today's young adult generation will only be enhanced by the supreme court successes.The two opinions reflect a new height in the legal and political sophistication of LGBT rights organizations, who have masterminded a campaign to legalize gay marriage with a multidimensional strategy of litigation, legislation, media, selective support of politicians and the creation of a voting block that, even if small, has become essential to the Democratic party's successes in key states and nationally. The sense that marriage equality is the civil rights issue of today's young adult generation will only be enhanced by the supreme court successes.
When the champagne stops flowing, federal agencies will have to sort through the more than 1,000 federal statutes that turn in some way on marital status in order to determine how to administer the results of the decision. President Obama issued a statement that implementation would happen "swiftly and smoothly". But it might not be so easy.When the champagne stops flowing, federal agencies will have to sort through the more than 1,000 federal statutes that turn in some way on marital status in order to determine how to administer the results of the decision. President Obama issued a statement that implementation would happen "swiftly and smoothly". But it might not be so easy.
Because the validity of a marriage is determined by each state's law, the question that must be settled next is which state's law will govern the question of federal recognition: the state where a couple resides or where the couple was married. Adding to the confusion is that some federal programs are operating pursuant to a statute that specifies either state of residence or of celebration, while others seemingly leave the Obama administration space to select which approach to use.Because the validity of a marriage is determined by each state's law, the question that must be settled next is which state's law will govern the question of federal recognition: the state where a couple resides or where the couple was married. Adding to the confusion is that some federal programs are operating pursuant to a statute that specifies either state of residence or of celebration, while others seemingly leave the Obama administration space to select which approach to use.
This issue will have a huge impact on what the supreme court's decision means on the ground because many gay couples have traveled from the state where they live but which does not allow gay marriage, to a state where they can lawfully marry. So – are they still legally married when they fly home? Under the law of their residence, the answer will still be no. But now, depending on how the new decision is put into effect, the fact that their marriage was legal where performed may lead to recognition of it for purposes of federal income tax, social benefits, inheritance tax and a multitude of other practical issues.This issue will have a huge impact on what the supreme court's decision means on the ground because many gay couples have traveled from the state where they live but which does not allow gay marriage, to a state where they can lawfully marry. So – are they still legally married when they fly home? Under the law of their residence, the answer will still be no. But now, depending on how the new decision is put into effect, the fact that their marriage was legal where performed may lead to recognition of it for purposes of federal income tax, social benefits, inheritance tax and a multitude of other practical issues.
Meanwhile, in California, the state government announced that all county clerks should issue marriage licenses to gay couples once the stay is lifted from the ruling that Prop 8 is unconstitutional. There is a wrinkle here as well, however, because only two county clerks were parties to that lower court ruling, and it is possible that a conservative clerk's office will resist issuing licenses, thus testing whether the ruling truly applies to the entire state. LGBT advocates hope that those who succeeded in garnering a majority of votes for Prop 8 will throw in the towel sooner rather than later in this final stage of the fight.Meanwhile, in California, the state government announced that all county clerks should issue marriage licenses to gay couples once the stay is lifted from the ruling that Prop 8 is unconstitutional. There is a wrinkle here as well, however, because only two county clerks were parties to that lower court ruling, and it is possible that a conservative clerk's office will resist issuing licenses, thus testing whether the ruling truly applies to the entire state. LGBT advocates hope that those who succeeded in garnering a majority of votes for Prop 8 will throw in the towel sooner rather than later in this final stage of the fight.
And it does seem like Wednesday's decisions mark one of the last gasps in a cultural battle to hold at bay the ongoing changes in the social meaning of marriage, as its power as a hegemonic institution diminishes. Whatever comes next in that larger debate, virtually everyone agrees that the campaign to secure marriage equality for gay couples will succeed sooner or later. Doubtless the justices of the supreme court have come to the same conclusion, and they, like the political barometers that they inevitably are, want to be on the right side of history.And it does seem like Wednesday's decisions mark one of the last gasps in a cultural battle to hold at bay the ongoing changes in the social meaning of marriage, as its power as a hegemonic institution diminishes. Whatever comes next in that larger debate, virtually everyone agrees that the campaign to secure marriage equality for gay couples will succeed sooner or later. Doubtless the justices of the supreme court have come to the same conclusion, and they, like the political barometers that they inevitably are, want to be on the right side of history.
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