Thursday, June 27, 2013

Same-Sex Marriage as of... Now

by Geoffrey R. Stone

Huffington Post

June 26, 2013

What did the Supreme Court do in its decisions on same-sex marriage?

First, in a five-to-four decision, the Court, in an opinion by Justice Kennedy, held that the federal Defense of Marriage Act is unconstitutional. In reaching this result, Justice Kennedy emphasized that he was focusing on the peculiarity that DOMA is a federal law that is making judgments about what is traditionally a matter of state concern -- marriage.

He therefore made clear that although DOMA is unconstitutional, that does not necessarily mean that a state law that denies same sex couples the freedom to marry is also unconstitutional. A state, in Justice Kennedy's view, can assert legitimate interests in defining the parameters of marriage that are beyond the purview of the federal government.

Nonetheless, in invalidating DOMA, Justice Kennedy wrote sympathetically and passionately about those who seek the right to marry. Here a few excerpts from his opinion for the Court:
Until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight.

Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York amended its marriage laws to permit same-sex marriage. New York, in common with, as of this writing, eleven other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons.