On behalf of Ronald H. Kauffman, P.A. posted in Marriage on Monday, July 1, 2013.

In case you didn’t hear the news, the Supreme Court last week ruled that married same-sex couples were entitled to the same federal benefits as same-sex couples and, by declining to decide a case from California, effectively allowed same-sex marriages there.

The rulings leave in place laws banning same-sex marriage around the nation, and the court did not say there was a constitutional right to same-sex marriage.

So, the effects are probably limited to couples married in the 12 states (and California) that recognize gay marriage. But the number of states recognizing gay marriage is likely to grow.

The majority opinion did something unusual, it stated that laws based on “animus” against gays and lesbians are unconstitutional:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. …The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.

This is a different analysis when the Supreme Court strikes down discriminatory laws. Specifically, the Court did not recognize “homosexual relations” as a “fundamental right,” or homosexuals as a suspect class. If the Supreme Court had done that, the Windsor case would have been a “fifty-state solution”, mandating same-sex marriage in every state. But it didn’t.

In Windsor however, the Court used state marriage laws to identify an individual’s liberty interest that justifies subjecting a federal law to heightened scrutiny. This is not how the doctrine has been done in the past.

Because of the Court’s striking down DOMA this way, states are free to define marriage as they wish – subject to Equal Protection and Due Process clause restraints – and the fight over “gay marriage” will continue in the states for years, as other litigation winds its way back to the Court.

You can read more about the two gay marriage rulings in the New York Times here.

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