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By Ann Gushurst

Today the Supreme Court struck down, in a 5-4 decision, Section 3 of the Federal Defense of Marriage Act, known as DOMA, which act defined and recognized marriages only as contracted between a man and a woman. It did so on the basis that Section 3 of DOMA created a two-tiered system under Federal law, under which valid same-sex marriages were denied validity under Federal laws. In the United States, marriage is recognized and defined state by state. Currently, only twelve states and the District of Columbia permit same-sex marriages.

The court’s decision was based on the reasoning that section 3 of DOMA unconstitutionally violates the equal protection clause of the fifth amendment:

“. . . By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic 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. This places same-sex couples in an unstable position of being in a second-tier marriage,” United States v. Windsor, 570 U.S. ___ (2013).

The court reasoned because states traditionally have the right to determine the validity of a marriage, once they’ve done so it is unconstitutional for the Federal government to deny recognition of those marriages. What is less clear is what this ruling will mean for states, like Colorado, who have their own DOMA laws. It must be kept in mind that while there are constitutional limits on the right to determine marriage rights – for example, anti-miscegenation laws (prohibiting mixed race marriages) have been struck down as unconstitutional, the court did not declare discrimination on the basis of sexual orientation unconstitutional. DOMA was struck down because it differentiated between two types of valid, legal marriages, not because prohibiting same-sex marriage was unconstitutional. States still will have a right to disregard each other’s marriages so long as the basis for doing so is not unconstitutional. Because the question regarding whether discrimination against sexual orientation is constitutional remains unanswered, parties who are legally married in one state will still face stiff hurdles in states that do not recognize same-sex marriages.

An interesting question arises in states like Colorado that grant same-sex marriages all the rights of marriage but withhold the status of “marriage.” Colorado’s Civil Unions bill requires that parties in a civil union have all the rights and obligations of married people under the laws of Colorado, but because same-sex couples are still not married, they will lose rights to federal marriage benefits. The DOMA decision highlighted how being denied marital status affects such issues as the government’s “taxing health benefits provided by employers to their workers same-sex spouse” to preventing “same-sex married couples from obtaining government healthcare benefits they would otherwise receive,” Windsor, 570 U.S. ___ (2013).

Today’s opinion states that it is – at least at a Federal level – unconstitutional to create a ‘two-tiered’ system because “[T]he differentiation demeans the couple, whose moral and sexual choices the Constitution protects.” Id. In Colorado, we will still have a two-tiered system insofar that we grant same sex civil unions the full panoply of state rights and obligations granted spouse, but we effectively deny them all the federal rights that accrue with marriage. The court specifically noted “over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.” Id.

The inconsistency of forcing the federal government to treat all married people the same, but still not granting same sex couples a constitutional right to marry was not by at least one Justice. Justice Scalia, in a rather pointed dissent, voiced the opinion that the court’s ruling would lead to a mess and that it would clearly apply to state bans against same-sex marriage. United States v. Windsor, 570 U.S. ___ (U.S. June 26, 2013, Scalia, J. dissenting). In what is an ironic twist, many proponents of gay marriage will find themselves hoping Scalia is right on that one point. Although many hoped that the decision would have the same far-reaching consequences as the striking down of the anti-miscegenation laws did several decades ago, the court did not render an opinion on the issue of discrimination on the basis of sexual orientation. But, what it did say gives those fighting for equality under the law some hope: “DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency,” United States v. Windsor, 570 U.S. ___ (2013).

For those seeking to contain marriage to “one man, one woman” there will likely be strong pushback to explain what good reason exists to deny gays the rights of marriage. Across America, thousands of same-sex families exist, even in states that do not recognize them, and the court noted that these families are indeed threatened by the instability and inequality that current laws denying them marital status afford them. No hard figures exist, but current estimates are that the number of children so affected is in the hundreds of thousands nation-wide.

The same day the DOMA decision was issued, the related case regarding California’s Proposition 8, was dismissed for lack of standing. Hollingsworth v. Perry, 570 U.S. ___ (2013). This dismissal in effect means that a lower court injunction banning implementation of California’s law against gay marriage will stand, which in turn will mean that it will again be legal for same sex couples to marry in California. This may have a resounding effect across the United States, as there is no residency requirement in California, and any same-sex couple may travel there to be legally married. Only twelve states (Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington and the District of Columbia) currently recognize same sex marriages as do three Indian tribes (Coquille, Suquamish and the Little Traverse Bay Band).

There is no doubt that both these rulings will have a ripple effect that is hard to gauge at the moment. Earlier this year Harvard Law Professor Lawrence Lessig described the fight against homophobia as the “issue we’ve been fighting in this century.” If he’s right, the Supreme Court’s ruling will be the first in many expansions of rights for gay, lesbian, bi-sexual and transgendered individuals. In an almost unnoticed but significant step, just last week Social Security announced that it will no longer discriminate against transgendered persons who live openly as a man or a woman, but who were unable to afford sexual reassignment surgery.

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