Catching Up on Gay Rights, the Supreme Court Overturns the Defense of Marriage Act

Photograph by Pete Marovich/MCT via Getty Images

The Supreme Court took a further step to catch up with a larger society adjusting to the idea of gay people as normal.

The justices were divided, and they moved awkwardly. But the institution took an inexorable step forward.

In one 5-4 ruling (PDF), the court’s liberal wing— plus the swing justice, Anthony Kennedy—overturned a federal law defining marriage as a heterosexual union. In his sometimes-soaring majority opinion, Kennedy said the Defense of Marriage Act violated the “equal protection” rights of married gay couples by denying them government benefits.

The law, known as DOMA, “places same-sex couples in an unstable position of being in a second-tier marriage,” Kennedy wrote. “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.”

The court stopped short, however, of declaring a constitutional right for gays to marry. In a separate 5-4 decision (PDF), the justices declined to rule directly on California’s voter-approved ban on gay marriage. “Even so,” Bloomberg News Supreme Court correspondent Greg Stohr correctly observed, “the decisions in the two cases sustain the momentum that has grown behind same-sex marriage over the past decade.”

The procedural ruling in the California case reinstated a trial judge’s order allowing at least some gay marriages in that state. And in the DOMA decision, the high court rejected many of the justifications for treating same-sex and heterosexual couples differently.

Momentum on gay rights was equally evident outside the Supreme Court’s marble temple. As the decisions were announced in the crimson-curtained courtroom, hundreds of demonstrators, many carrying pro-gay marriage signs and rainbow flags, gathered at the court’s steps. The Court has lagged behind the 12 states and the District of Columbia that have already legalized gay marriage. Six of the states did so in just the last year.

Another portent: Last week, one of the country’s leading anti-gay institutions, Exodus International, decided not to wait for the justices to act. Exodus simply closed its doors. It will no longer offer “reparative” therapies to try to turn gays and lesbians straight.

Joining Justice Kennedy in the majority of the DOMA ruling were Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Dissenting were Chief Justice John Roberts and justices Antonin Scalia, Clarence Thomas, and Samuel Alito. “We have no power under the Constitution to invalidate this democratically adopted legislation,” Scalia wrote.

In the California case, a majority said sponsors of the anti-gay marriage Proposition 8 lacked the right to appeal the trial judge’s order. The state of California refused to defend the measure. The vote in this case divided along different lines. In the majority were the chief justice and justices Scalia, Ginsburg, Breyer, and Kagan. Kennedy, Thomas, Alito, and Sotomayor said the high court should have ruled on the constitutionality of the California ban. Instead, the court left such a ruling for another day—a day that is certainly coming. When it does, it’s hard to imagine the justices upholding a state’s attempt to keep gays from the altar.

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