Wednesday, June 26, 2013

Supreme Court strikes down ("most" of) DOMA; In Proposition 8, Hollingsworth did not have standing to defend law

On Wednesday, June 26, 2013, the Supreme Court, with a majority opinion written by Justice Anthony Kennedy, has struck down the last provision (Section 3) of the Defense of Marriage Act (DOMA), signed by President Clinton in 1996.
The ruling appears to be based on the Equal Protection Clause.
That would mean that the federal government cannot refuse to pay spousal benefits to same-sex partners in a state that recognizes the relationship just because other states might not have;  in a sense, federal obligations can be affected by state actions in our system of federalism.
Kennedy apparently wrote that DOMA demeaned gay people and their relationships.

The second part of the DOMA act, that states do not have to recognize same-sex marriages of other states, was left intact. It was the third portion (federal recognition and benefits) that was struck down. (See Wikipedia here.)
Edith Windsor will get her extra tax back.
But some of the benefits affected by DOMA had been non-financial. Now the military will be required to notify same-sex partners (if married in state of origin) after death or casualty during deployment.  
CNN’s coverage (changing rapidly) is here

The Supreme Court slip opinion (5-4) on United States v. Windsor is here. Note that the SCOTUS wenbsite moves or renames the url's for slip opinions once they are filed.  

The opinion will obviously be important to military same-sex couples, and to immigration of couples from countries recognizing same-sex marriage. 

In Hollingsworth v. Perry (Proposition 8 in California), Justice Roberts wrote the majority opinion in a mixed 5-4 decision.  The decision holds that Hollingsworth had no right or standing to be in court defending the law.   That also means that the Ninth Circuit did not have jurisdiction.  That means that the trial court in California had the only jurisdiction. The slip opinion is here
It is not clear that same-sex marriage is legal right now in California but it may well be.  This may become a political question again.  Stay tuned for updates. 

Jeffrey Toobin at CNN suggests that the legal landscape is reminiscent of Loving in Virginia in 1967.  The legal climate invites a federal lawsuit to declare state laws banning same-sex marriage unconstitutional under the way the 14th Amendment might be extended.  

Update: June 28

The Ninth Circuit has lifted the stay, and same-sex marriages can resume almost immediately in California. 

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