It's been three weeks since the U.S. Supreme Court issued the decisions in Windsor v. United States & Hollingsworth v. Perry. Immediately following the decisions everyone seemed to post something about what the decisions mean for married lesbian and gay couples, the LGBT community as a whole and the future of marriage in the U.S.
I decided to wait a bit, digest the decisions and think about the Supreme Court's ruling before commenting.
Make no mistake, the decisions have made a significant difference in many lives. Every married same-sex couple in one of the 14 marriage equality jurisdictions will now be considered just plain ol' "married" for federal and state purposes.
California's Proposition 8 is not being enforced. Contrary to the legal claims of the Prop 8 proponents, the U.S. District Court decision ruled Prop 8 unconstitutional. When a federal court issues such a decision, the matter can be appealed. If it is not appealed the decision stands and is enforceable. The Perry decision held the Prop 8 proponents had no right to appeal the trial court decision. The Supreme Court vacated the 9th Circuit judgment and that puts the trial court decision back on top. Now the California Supreme Court is set to determine whether the trial court's decision applies across the state or only in the two counties from which the plaintiffs hail. I find it difficult to think the court will decide the latter. It would make for an untenable situation in California. The Prop 8 proponents need to give it up. You lost!
Windsor presents other issues. Nothing in the decision restricts its application only to those married lesbian and gay couples living in a marriage equality jurisdiction. Justice Kennedy could have restricted the opinion but did not. Therefore, a reasonable argument can be made that the federal government must recognize marriages throughout the country and look only to the state of celebration (where the marriage took place).
Unfortunately, it seems clear the decision does NOT apply to civil unions and domestic partnerships. Lesbian and gay couples in the seven states that recognize those continue to enjoy only state benefits. And, the remaining 29 states that ban marriage equality, either through statute, constitutional amendment or both, continue to have the authority to discriminate against their lesbian and gay citizens where state benefits are concerned.
I decided to wait a bit, digest the decisions and think about the Supreme Court's ruling before commenting.
Make no mistake, the decisions have made a significant difference in many lives. Every married same-sex couple in one of the 14 marriage equality jurisdictions will now be considered just plain ol' "married" for federal and state purposes.
California's Proposition 8 is not being enforced. Contrary to the legal claims of the Prop 8 proponents, the U.S. District Court decision ruled Prop 8 unconstitutional. When a federal court issues such a decision, the matter can be appealed. If it is not appealed the decision stands and is enforceable. The Perry decision held the Prop 8 proponents had no right to appeal the trial court decision. The Supreme Court vacated the 9th Circuit judgment and that puts the trial court decision back on top. Now the California Supreme Court is set to determine whether the trial court's decision applies across the state or only in the two counties from which the plaintiffs hail. I find it difficult to think the court will decide the latter. It would make for an untenable situation in California. The Prop 8 proponents need to give it up. You lost!
Windsor presents other issues. Nothing in the decision restricts its application only to those married lesbian and gay couples living in a marriage equality jurisdiction. Justice Kennedy could have restricted the opinion but did not. Therefore, a reasonable argument can be made that the federal government must recognize marriages throughout the country and look only to the state of celebration (where the marriage took place).
Unfortunately, it seems clear the decision does NOT apply to civil unions and domestic partnerships. Lesbian and gay couples in the seven states that recognize those continue to enjoy only state benefits. And, the remaining 29 states that ban marriage equality, either through statute, constitutional amendment or both, continue to have the authority to discriminate against their lesbian and gay citizens where state benefits are concerned.
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