Gay Marriage Will Likely Go to the Supreme Court in 2013 in an Epic Showdown


On Thursday the Court of Appeals for the First Circuit unanimously declared the Defense of Marriage Act (DOMA) unconstitutional, a huge step forward for the LGBT community.

Passed in 1996 by Congress and signed into law by then-president Bill Clinton, DOMA defines marriage as a legal union between a man and a woman. While the act doesn't outright ban gay marriage in the states that permit them, it does prevent gay couples from receiving federal recognition of their union, which prevents them from receiving federal marriage benefits such as receiving social security survivor's benefits, federal joint-tax return filing, and sharing insurance benefits for federal employees.

The ruling today made clear that the court was only declaring the benefits issue unconstitutional. In his opinion, Judge Boudin writes that "DOMA affects a thousand or more cross-references to marriage in myriad federal laws ... In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage".  

This is the crux of the ruling: Couples who marry in states that allow same-sex marriages are not afforded the same benefits as traditional marriages, resulting in an inequality of rights. The ruling is now the highest court opinion tying same-sex marriage rights to past legal precedent protecting minority rights.

But Boudin's most striking points regard the federal-state ambiguity of DOMA, an the issue that will most certainly come to a head when the case eventually reaches the Supreme Court. DOMA paradoxically prevents traditional marriage benefits for same-sex couples, yet lets the states allow same-sex marriage. This "burden[s] the choice of states like Massachusetts to regulate the rules and incidents of marriage" on their own.

So while a resounding victory for the LGBT community, it sets up an epic showdown in the Supreme Court, which will most likely hear it next year. But with the Court's current center-right position--polarizingly demonstrated in Citizens United and the potential strikedown of the Affordable Care Act--their is the grim possibility that the equal rights movement may be dealt a devastating blow.

The more positive take is that Judge Boudin's ruling is strong, and compellingly presents precedent and support for finally ruling DOMA unconstitutional and making benefits equal. Gays and Allies alike should celebrate that, and look forward to next year's showdown with optimism.