US to recognise gay marriage in 13 states at a federal level
With US Supreme Court upholding two lower court rulings, Edie Windsor has been successful in her challenge to Section 2 of the Defense of Marriage Act, which defined marriage at a federal level as between a man and a woman.
This means that gay couples who marry in the states of Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, and in the District of Columbia.
In the case to uphold Proposition 8, Hollingsworth v. Perry, which began as Perry v. Schwarzenegger, the Supreme Court ruled that Dennis Hollingsworth did not have legal standing to challenge the District Court ruling. He heads Protect Marriage, the group that pushed to get Proposition 8 on the ballot, but the Court ruled that this did not give him a right to challenge what was a state law, and therefore within the remit of the governor and attorney-general of California, Gerry Brown and Kamala Harris, to challenge the lower court rulings, and both of them support agree that Proposition 8 was unconstitutional.
This decision is legally sound, and has precedent in Arizonans for Official English v. Arizona. It is almost surprising then that Court granted cert to the case, and we’ll never know which of the four decided to do so.
So gay couples will soon be able to marry again in California, having been able to do so during a few months in 2008.
I was particularly pleased that Justice Anthony Kennedy wrote his opinion based on equal protection, rather than states’ rights. This is the third major gay rights ruling of his, afterRomer v. Evans in 1996, which overturned exemptions of gay people from discrimination laws, and Lawrence and Garner v. Texas ten years ago today in 2003, which overturned remaining anti-sodomy laws. All in all, a strong ally for gay people on the bench. Will he have a chance to go one further and extend marriage for gay and lesbian couples nationwide?
We will have to wait to get a challenge from a couple in a state whose governor and attorney-general will continue to defend such a prohibition all the way to the supreme court, and preferably in a state where there is a reasonable prospect of a district or circuit court ruling in favour of equal marriage.