Public opinion on gay marriage has shifted dramatically in recent years. SCOTUS rulings reshape landscape

With its rulings Wednesday overturning the 1996 Defense of Marriage Act and allowing same-sex marriages to resume in California, the Supreme Court made a major contribution to the growing sense of political inevitability for full legal rights for same-sex couples.

Exactly one decade to the day after the court’s pivotal Lawrence v. Texas ruling overturned state sodomy laws, the high court handed gay rights advocates a significant pair of 5-4 wins: A majority of the justices overturned the federal law that barred marriage-related benefits for same-sex couples, while another slate of five justices voted to leave intact a ruling against a measure that would ban those unions altogether in California.


The court’s decision on Proposition 8 scrambled its usual ideological lines, finding that proponents of California’s voter-approved ban on same-sex marriage lacked jurisdiction to appeal lower court rulings that held the measure unconstitutional.

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The ruling sets the stage for same-sex marriages to resume in California, by allowing the initial district court ruling against Prop. 8 to stand — though more legal maneuvering on that issue is likely, since most counties in the Golden State weren’t covered by that initial case, and may choose to ignore the original decision.

The court’s verdict earlier Wednesday on DOMA is likely to have the more immediate impact, awarding all couples legally married in the states that permit same-sex marriage hundreds of employment, tax and other benefits that had been denied to them under federal law.

Conservative Justice Anthony Kennedy joined with the court’s four liberals to find unconstitutional the law passed by Congress and signed by President Bill Clinton.

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In an opinion suffused with moralistic language condemning the social consequences of ostracizing gay couples, Kennedy wrote that DOMA “violates basic due process and equal protection principles applicable to the federal government.” The majority opinion also criticizes DOMA as an intrusion on states’ traditional role defining marriage.

“DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,” Kennedy added.

He said that the law “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.”

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“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom that State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those person as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment,” Kennedy wrote.

Reading his dissent from the bench, Justice Antonin Scalia denounce the majority’s decision to decide the case and to strike down DOMA as aggressive acts of judicial activism.

“Both of them are wrong, and the error in both spring from the same diseased root: an exalted notion of the role of this court in American democratic society,” he said.

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Scalia slammed the Kennedy majority for claiming that DOMA’s supporters acted to “disparage and injure” same-sex couples, with motivation to “demean” them, as well as to “impose…a stigma” and to “humiliate” their children.

“Bear in mind that the object of this terrible condemnation is not some benighted state legislature and governor, but our respected co-ordinate branches, the Congress and presidency of the United States,” Scalia said.

“Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority’s opinion does the opposite, affirmatively concealing from the reader – never mentioning, the arguments that exist in justification.”

Despite its strong language condemning DOMA, the majority opinion in that case expressed no opinion on whether states could continue to refuse to marry same-sex couples.

“This opinion and its holding are confined to those lawful marriages,” Kennedy wrote, in an apparent reference to same-sex marriages authorized by the state of New York. The case before the high court was filed by Edith Windsor, who lived in New York with her spouse Thea Spyer and was denied federal spousal estate tax benefits after Spyer died.

Scalia dismissed Kennedy’s effort to limit the court’s holding in the DOMA case to how the federal government treats legally married same-sex couples.

“It takes real cheek for today’s majority, as it is going out the door, to leave us with that comforting assurance, when what has preceded is a lengthy lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it,” he said.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

In a separate dissenting opinion, Roberts tried to referee the dispute, and to rein in the significance of the majority’s decision.

“The Court does not have before it, and the logic of its [majority] opinion does not decide, the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation…’ may continue to utilize the traditional definition of marriage,” the chief justice wrote.

Roberts rejected what he said was Kennedy’s conclusion that “sinister” motives were behind DOMA, but the chief justice emphasized the parts of the majority’s ruling that underscored federal deference to state decisions on marriage. “I think the majority gores off course…but it is undeniable that its judgment is based on federalism,” Roberts added.

In addition to Scalia and Roberts, the two other Republican-appointed justices dissented from the DOMA ruling, but the dissenters were split about whether Congress — in this instance, the House of Representatives — had the right to bring the case to the Supreme Court.

Roberts, Scalia and Thomas said they would have ruled that the dispute was not properly before the court, because Congress had no right to appeal lower court decisions when the Obama administration stopped defending DOMA.

Justice Samuel Alito disagreed, saying Congress did have that power.

The majority’s ruling struck down a key section of DOMA that denied most of the federal benefits of marriage to same-sex couples, but did not address other aspects of the 1996 law.

On Prop. 8, Roberts wrote for the court’s majority that that the private proponents of the measure did not have standing to defend the measure in federal courts. The decision vacates the appeals court ruling holding the measure unconstitutional, but appears to leave intact a district judge’s ruling that also found the measure unconstitutional.

Scalia joined with Roberts on the procedural issue, as did liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Kennedy dissented, along with fellow conservatives Thomas and Alito, and liberal Justice Sonia Sotomayor.

Prop. 8 passed 52 percent to 48 percent in November 2008, effectively blocking moves by San Francisco Mayor Gavin Newsom and other local officials to issue marriage licenses to gay and lesbian couples. Future President Barack Obama prevailed in the Golden State on the same ballot, 61 percent to 37 percent, over GOP presidential nominee Sen. John McCain.

President Barack Obama, traveling to Africa when the decisions were announced, called the Prop. 8 plaintiffs from Air Force One to congratulate them on the rulings. He later issued a statement praising the court’s decision to strike down DOMA, calling the original measure “discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it.”

Obama also said he had directed Attorney General Eric Holder “to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

Public opinion on same-sex marriage has shifted dramatically in the country in recent years, with the number of Americans supporting what advocates call “marriage equality” surging in polls. When DOMA passed in 1996, only about a quarter of Americans backed the legal recognition for same-sex marriages. In 2009, when Prop. 8 opponents launched their legal challenge, the number was around 40 percent. Now, a majority now appears to support legal recognition for the concept.

Despite Kennedy’s language seeking to limit the scope of the Prop. 8 ruling, gay rights activists were ecstatic about the decision. The ruling itself struck a huge blow for their cause by ending federal discrimination against married couples of the same sex. And, echoing Scalia, gay rights advocates said the legal rationale and overall tone of Kennedy’s opinion will undermine virtually any state or local measures which limit the rights of gays and lesbians.

”The end of DOMA and the return of same-sex marriage to California are major victories for the gay rights movement, which now seems unstoppable,” said Richard Socarides, an attorney and former White House adviser to Clinton on gay and lesbian issues. “The DOMA decision in particular is a landmark ruling, which will have implications for decades to come.”

Same-sex marriage opponents expressed regret about the pair of decisions, but took solace in the fact that the justices didn’t produce a sweeping ruling in favor of same-sex marriage rights nationwide.

Gay rights advocates “didn’t get what they really hoped for which was a declaration of an absolute right to same-sex marriage in all 50 states…but obviously we’re disappointed,” said Peter Sprigg of the Family Research Council.

Some lawyers and analysts hoped that the high court’s DOMA opinion would declare that all categorization by the government based on sexual orientation is inherently suspect and should be subjected to “heightened scrutiny” — a kind of judicial review that would leave gay-marriage bans nationwide vulnerable to legal attack.

However, Kennedy’s majority opinion in the DOMA case never directly addressed what level of scrutiny courts should apply in cases involving discrimination against same sex-couples.

Still, the tone of Kennedy’s opinion concerned social conservatives.

”It does raise concerns about what he might decide if another case comes up from the states that doesn’t suffer from the defects found in the Prop. 8 case,” said Sprigg. “We believe the reason marriage is defined as a union of one man and one woman has nothing to do with animus to homosexuals as persons, but has to do with the unique nature of male-female relationships.”