clock menu more-arrow no yes

Filed under:

What's next? Where the SCOTUS decisions leave the gay marriage debate

The Supreme Court decisions Wednesday to strike down part of the Defense of Marriage Act and to send the case about California's Proposition 8 back to the federal court in that state have immediate and short-term consequences.

There also are long-term implications. News outlets around the country are considering these post-decisions effects and the strategies that might be employed by various sides in the debate over same-sex marriage.

First, the rulings left in place the laws and constitutional provisions in 35 states that recognize only traditional marriages between a man and a woman. Two states do not have any laws about same-sex marriage. The ruling on Prop 8 made California the 13th state that allows same-sex marriage.

DOMA ruling

The New York Times’ Adam Liptak reported that the Supreme Court’s decision striking down the Defense of Marriage Act “will immediately extend many (federal) benefits to couples in the states where same-sex marriage is legal, and it will give the Obama administration the ability to broaden other benefits through executive actions.”

Tweeting midday from Washington, D.C., the New York Times’ Jeremy W. Peters wrote that the White House is actively considering how to cut Congress out of the equation in order to expedite the conferral of full federal benefits to same-sex couples: “Obama, WH counsel brief gay rights groups, pledge to be thorough and thoughtful in considering how to get gay couples benefits ASAP. … Changes needed to ensure gay couples have full federal recognition should be done by Congress. Not happening. So WH exploring its options.”

Proposition 8 decision

Howard Mintz of the San Jose Mercury News reported that gay marriages will likely resume in California approximately one month from now. “Gov. Jerry Brown said the state will instruct county clerks across California to start issuing marriage licenses to gay and lesbian couples once the Supreme Court's decision is final and the legal details are complete in the lower courts. Attorney General Kamala Harris has advised the governor that the original injunction against Proposition 8 applies statewide, which would compel the state to issue marriage licenses to same-sex couples once the Supreme Court's ruling becomes final, ordinarily in about 25 days.”

However, the high court went out of its way to avoid specifying whether same-sex marriage is a constitutional right. SCOTUS Blog’s Lyle Denniston wrote that the Supreme Court “declared, in quite explicit terms, that it was not deciding at this point whether the Constitution guarantees gays and lesbians a right to marry or whether the Constitution forbids states’ bans on such marriages. That will leave the promoters of marriage equality to continue with their efforts, in state legislatures and in lower courts, to try to win the right one more state at a time.”

Unfinished business?

The lack of finality in the Supreme Court’s Proposition 8 ruling left both sides of the gay marriage debate anticipating future court battles.

Human Rights Counsel legal director Brian Moulton told the New York Times he is looking past the Proposition 8 decision and anticipating a flurry of similar litigation in other states during the coming years. “There remain 29 states with constitutional bans on marriage for same-sex couples, and these will take more time and effort to overturn, particularly in states where there is less support for LGBT equality. We are also likely to see further litigation challenging marriage bans on federal constitutional grounds, and one of them may very well be back in front of the court in the next few years.”

HRC president Chad Griffin issued a call for action. "Let's set a new goal — within five years, we will bring marriage equality to all 50 states."

"While we celebrate the victory for Californians today, tomorrow we turn our attention to the millions of LGBT people who don’t feel the reach of these decisions," Griffin said at a press conference outside the Supreme Court, according to "From the Rocky Mountains to the heart of the South, it’s time to push equality forward until every American can marry the person they love and all LGBT people are guaranteed equal protection under the law."

A state-by-state campaign certainly would face opposition, and members of Congress who backed DOMA said they would continue to work to maintain traditional marriage while others outside Congress called on its help.

CBS reported that House Speaker John Boehner, R-Ohio, "lamented the decisions, referencing the bipartisan coalition that originally voted for DOMA and a state's right to define marriage. House Republicans spent over $2 million defending DOMA in court, two GOP aides told CBS News, after the Obama administration declined to defend it."

"The House intervened in this case because the constitutionality of a law should be judged by the Court, not by the president unilaterally," Boehner said in a statement. "While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances. A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman."

"There's a stench coming from these cases that has now stained the Supreme Court," National Organization of Marriage president Brian Brown said. "It's imperative that Congress continue to protect the right of states to not recognize faux marriages in their state."

Chapman University law professor and Proposition 8 supporter John Eastman told the Los Angeles Times, “This is far from over, I can tell you.” The L.A. Times article continued, “Eastman said the supporters of Proposition 8 could challenge the scope of (Judge Vaughn) Walker’s order in federal district court or in state court under a provision of the California Constitution that prevents state officers from refusing to follow laws without an order from an appeals court.”