"United States v. Windsor" lawsuit succeeds in having part of
DOMA law ruled unconstitutional by the U.S. Supreme Court
Human Rights Campaign issues goal.
Some reactions to the U.S. Supreme Court's ruling
on the federal Defense of Marriage Act.
The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States
The Human Rights Campaign (HRC) goal and its feasibility:
The HRC is one of the largest national organizations promoting equal rights to the lesbian, gay, bisexual, transgender and transsexual community (LGBT). Chad Griffin, its president, announced in the Utah Pride Center in Salt Lake City, UT that his organization's goal is:
"... to legalize same-sex marriage nationwide within five years."
He also said:
"We won't stop fighting until every barrier falls, until full equality reaches every single person in every corner of this great country." 11
Mid-2018 might be an impossible goal because so many states have not only passed laws to prohibit same-sex marriage, but have also amended their constitutions to prevent their legislatures and courts from acting to legalize SSM. It can take up to six years to amend a state constitution so that the Legislature becomes free to amend the state's marriage law and allow SSMs.
As of mid-2013,:
- There are 51 political jurisdictions in the U.S.: 50 states and the District of Columbia.
- 29 states have modified their constitution to prohibit SSM. They are mostly in the South and Midwest.
- 14 jurisdictions, including California, currently allow SSM: 13 states and the District of Columbia.
- About 30% of the U.S. population resides in a jurisdiction that allows SSM.
That would seem to leave 8 states, including Hawaii, Illinois, Michigan, and New Jersey, which could make SSMs possible through an act of its Legislature. But many, if not most, of these states lack at least one of the three prerequisites normally required to amend their marriage act:
- Democratic control of the state House,
- Democratic control of the state Senate, and
- a Democratic governor.
New York is the only state that has ever been able to legalize SSM while one of legislative bodies was under Republican control.
In the latter half of the 20th century, the situation in the U.S. with respect to interracial marriage resembled that of same-sex marriage today. During the early 1960's, 41 states had anti-miscegenation laws that prohibited interracial marriage. By 1967, 16 states still prohibited interracial marriage. Also in 1967, the U.S. Supreme Court acted to declare all such laws unconstitutional by ruling in the famous case Loving v. Virginia.
One unknown factor that would have a profound effect on achieving the HRC goal is the future makeup of the U.S. Supreme Court. It is generally acknowledged that every Justice appointed to the court to replace a Justice who has retired or died over the past two decades has been more conservative than their predecessor. If this pattern were reversed, then the HRC goal could come much sooner.
Reactions to the ruling:
- President Barack Obama praised the ruling, referring to the DOMA law as it was written as:
"... discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. ... The Supreme Court has righted that wrong, and our country is better off for it." 1
He also said:
"We are a people who declared that we are all created equal — and the love we commit to one another must be equal as well." 1
- According to NBC News:
"The two rulings, released minutes apart, were greeted by jubilant cheers outside the Supreme Court, where crowds of gay-marriage supporters waved rainbow banners and flags bearing symbols of equality, and at City Hall in San Francisco." 2
- Brian Brown of the National Organization for Marriage -- the main national group opposing marriage for same-sex couples -- was asked what he thought about the dissent in the DOMA case by Justice Scalia. Scalia predicte that the ruling would pave the way for state laws banning SSM to be struck down. Brown responded:
"Well, I don't think that that is inevitable. What Justice Scalia is pointing to is the absolute travesty of Kennedy's decision in the DOMA case, which really is incoherent. He doesn't even lay out the basis of what his legal reasoning is." 10
- Chad Griffen of the Human Rights Campaign -- one of the main national groups promoting marriage equality -- said:
"American values really did win. ... Now that DOMA has been erased from the books thanks to that historic decision, [for] those [same-sex] couples across the country who are legally married, their relationships and their families will be recognized as such."
"We'll fight this battle on all fronts. ... We'll fight at the ballot box where there are opportunities, we'll fight at the state legislature, and ultimately this will come back to our federal courts." 10
- Nancy Pelosi referred to the famous quote by Martin Luther King, Jr.:
"Today, the Supreme Court bent the arc of history once again toward justice, discarding the defenseless DOMA into the dustbin of history. 9
- Mike Huckabee sent an email titled: "5 People In Robes Are Not Bigger Than God." The five people to whom he is referring are the five Justices on the Supreme Court of the United States (SCOTUS) who voted to legalize same-sex marriage in California and to repeal the DOMA bill. His email said:
"My immediate thoughts on the SCOTUS ruling that determined that same sex marriage is okay: 'Jesus wept'. Five people in robes said they are bigger than the voters of California and Congress combined. And bigger than God. May He forgive us all." 3
Bishop Edward Slattery, of the Roman Catholic Diocese of Tulsa, OK said:
"Marriage is not a societal construct, but is rather an institution given by God and written in the laws of nature, established at the creation of the world. With this in mind, no government power has the authority or ability to redefine the essence of marriage."
- The Baptist General Convention of Oklahoma said:
"We take heart knowing that no government body can redefine what God Himself created in marriage as one man and one woman." 1
- Sean Raftery, writing for PolicyMic, thoughtfully described reactions to the Court ruling:
"... the country is extraordinarily polarized on the issue, and many statements of disapproval regarding the ruling have been made. ... Those who don’t agree with the court are not doing so on any sort of constitutional basis. They’re doing so due to their own personal beliefs, and the idea that those beliefs should be reflected in the law. Even as it decided that the Defense of Marriage Act was partially unconstitutional, United States v. Windsor proves that nobody cares about enforcing the Constitution anymore.
The public, when expressing its opinion, made few if any comments about whether or not the law was a violation of the Fourteenth Amendment. Opinion was generally divided between the gay community and its allies, who wanted equal recognition, and the pro-DOMA camp, which placed value on religious interpretations of marriage.
Even while reading Justice Kennedy’s opinion, it comes across less as a legal argument, with a clear listing of what amendments or articles had been violated, and more as a statement of five justices believing that equal recognition of marriage is 'right.' The Supreme Court is not meant to be an arbiter of morality, it is meant to determine whether or not the law being challenged by the case they are hearing is constitutional or not. Section 3 of DOMA, which defined marriage as between a man and a woman, was fairly clearly in violation of the Fourteenth Amendment, and should have been universally seen as such by the justices. But reading Kennedy’s remarks, the lack of constitutionality seemed to have taken a back seat to the idea that Section 3 was 'wrong'." 4
More reactions to the Court ruling in U.S. v. Windsor continues in the next essay.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Mark Sherman, "Supreme Court rulings give boost to gay marriage," Associated Press, 2013-JUN-27, at: http://www.tulsaworld.com/
- Pete Williams & Erin McClam, "Supreme Court strikes down Defense of Marriage Act, paves way for gay marriage to resume in California," NBC News, 2013-JUN-26, at: http://nbcpolitics.nbcnews.com/
- Jessica Chasmar, "Mike Huckabee on Supreme Court gay marriage ruling: 'Jesus wept'," Washington Times, 2013-JUN-26, at: http://www.washingtontimes.com/
- Sean Raftery, "Supreme Court DOMA: The Real Lesson Of DOMA Reactions? Nobody Cares About the Constitution," PolicyMic, 2013-JUN-29, at: http://www.policymic.com
- Jaymi McCann, " 'Sad day for our nation; founding fathers would be ashamed': Chick-fil-A boss causes outrage AGAIN after tweeting disappointment over historic gay marriage ruling," Daily Mail (UK), 2013-JUN-29, at: http://www.dailymail.co.uk/
- Keegan O'Brien, "Defeating DOMA & Prop 8: We’ve Made History, but We’re Far From Finished," The Rainbow Times, 2013-JUL-04, at: http://www.therainbowtimesmass.com/
- "Dave Silverman," Facebook, 2013-JUN-26, at: https://www.facebook.com/
- Brian Tashman, "AFA: DOMA Decision Will Lead to God's Judgment, Death of Marriage," Right Wing Watch, 2013-JUN-26, at: http://www.rightwingwatch.org/
- Sharon McNary, "Prop 8 update: Gay marriage opponents ask California Supreme Court to deny licenses," KPCC, 2013-JUL-12, at: http://www.scpr.org/
- Matt Slegde, "National Organization For Marriage President Brian Brown: DOMA Decision 'Absolute Travesty'," The Huffington Post, 2013-JUN-30, at: http://www.huffingtonpost.com/
- Marjorie Cortez, "Same-sex marriage advocates make 5-year prediction," KSL, at: http://www.ksl.com/