9:04 AM PT: The Defense of Marriage Act, the 1996 law allowing Federal and state governments to discriminate against legally married same-sex couples, is unconstitutional, the Supreme Court has ruled. It’s a 5-4 ruling. Roberts and Scalia and dissent. Kennedy has written the ruling. The focus is equal protection.
9:03 AM PT: SCOTUSblog: “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”
9:05 AM PT: Here’s the opinion.
9:06 AM PT: NBC’s Pete Williams suggests that DOMA ruling is a big enough ruling that it may take some time for the justices to read their opinions, which means the Prop. 8 ruling might take a little longer to be revealed.
9:08 AM PT:
NBC’s Pete Williams: “This was a very broad ruling…that can be used by proponents of same sex marriage to attack laws in other states”
Really cool!
To be clear: Windsor addressed ONLY Section 3 of the Denial of Marriage Act, the part of the law that forbade the federal government from recognizing same-sex marriage, and so that was the only part of the law that was struck down.
Section 2, which allows states to piss on the Full Faith and Credit clause with regards to same-sex marriage, remains in force, and the question of whether state bans on same-sex marriage are constitution remains unaddressed. Because these issues were not a part of the original case, US judicial procedures bar appeals courts from ruling on them.
HOWEVER, the majority opinion (much to Scalia’s amusingly frothing dissent) found that DOMA’s intent was to willfully cause harm to same-sex couples. This is now a part of federal common law, and lower courts are free to use this part of the ruling to declare both Section 2 and state bans to be unconstitutional. By the time these matters reach the Supreme Court, there will almost certainly be a slew of lower court rulings that the Supreme Court will not be able to put aside easily.
What we heard from Anthony Kennedy this morning was the sound of dominoes falling.
The practical effect of this ruling will be a strong increase in momentum toward States recognizing marriage equality.
First, the “all-but-marriage” domestic partnership states will be (and are, from today) under pressure to recognize full marriage equality for no other reason than to gain the benefits of joint filing in FEDERAL tax returns, both income-tax and estate tax.
Second, the anti-equality states will now have to justify to their constituents why they want their constituents to pay more FEDERAL taxes in order to “preserve” traditional marriage. More to the point, they will have to justify to their citizens why they want their constituents to pay MORE federal tax than married couples pay in the neighboring states.
Third, the ruling today gives fence-sitters and even hard-core “antis” an out: “Much as it pains us, we cannot ask our folks to pay more FEDERAL taxes. SCOTUS was wrong, wrong, wrong, but now that they’ve ruled, we need to give our citizens a fair opportunity to compete in the modern world”
pH