US Supreme Court get same sex marriage spot on

Ahead of their summer recess, the Supreme Court of the United States has published a number of historical decisions throughout June, including two fundamental cases on the fight for equal marriage in the United States.


The first surrounded the federal Defense of Marriage Act, or ‘DOMA’, which defines marriage as between a man and a woman, and prevents federal recognition of same-sex couples that are legally married in the eyes of their state. The President that signed DOMA into law, Bill Clinton, called for its repeal, while President Obama refused to defend the law in court, forcing congress to fund its defence.

In the case before the Supreme Court, a lesbian couple from New York married in Canada, but after her wife’s death, the claimant was forced to pay more than $300,000 in federal tax to inherit her wife’s estate. If they had been an opposite-sex couple, this would not have been the case.

The second case centred on California Proposition 8, or ‘Prop 8’, which was a 2008 ballot measure in which 52% of California’s voters chose to amend their constitution to define marriage as a union between a man and a woman, thus overturning their state’s months-earlier legalisation of same-sex marriage. Proponents of the measure were forced to defend the measure before the courts after the state of California refused.

Despite a summer of controversial decisions, the Supreme Court got both exactly right.

They found that the section of DOMA depriving federal recognition for same-sex marriages was unconstitutional, because it breached the ‘equal protection clause’. The amendment was incorporated into the constitution with the aim of ensuring equal treatment for emancipated former slaves, but the majority of the Supreme Court agreed that its wide-ranging language was sufficient to prevent the federal government from distinguishing between an opposite-sex married couple and a same-sex married couple. Accordingly, they struck down the offending provision, paving the way for the federal government to offer the same benefits to all married couples.

Prop 8, however, was more complicated. The Supreme Court avoided making a ruling on the case by ducking out on a legal technicality. The Ninth Circuit Court of Appeals had ruled that the amendment to California’s constitution, like DOMA, violated the ‘equal protection’ clause. On appeal to the Supreme Court, California’s government was, by refusing to defend it, effectively in agreement with the parties suing it – that the previous decision outlawing the ban on same-sex marriage was illegal – and the Supreme Court refused to accept the case, blaming a lack of authority since the parties were not disputing the outcome of the previous ruling.

The good news is, that the lower court’s ruling that California must resume awarding same-sex marriages still stands. The bad news is that there remains no Supreme Court authority on whether States may ban same-sex marriage.
While many may despair that the Supreme Court could’ve done a lot more to protect the rights of same-sex couples, they ultimately made the rights calls.

DOMA cleared Congress with a huge majority, but a lot has changed since 1996. 12 states and DC currently permit same-sex marriage, and surveys indicate a majority of Americans now support it.

Prop 8 was, after all, approved by a majority of voting Californians, and the Supreme Court overruling it would raise serious questions about the power of the courts. A sweeping ruling would also have invalidated provisions in 30 states, and while these provisions are undoubtedly morally unjustifiable, the outrage caused would have done serious damage to the Supreme Court as an institution. Their decision avoids all of these potential disasters, while returning to Californians the rights they were deprived of in 2008.

Despite the historic significance of the decisions, there remains a struggle in the 37 states who still refuse to accept marriage equality – both in the courts, and on the streets – but if nothing else, the Supreme Court have demonstrated that the tide is turning.


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November 2021
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