Today, the Supreme Court came down with its rulings in United States v. Windsor and Hollingsworth v. Perry, better known as the marriage cases: DOMA and Prop 8. As everyone already knows by now, the Court invalidated § 3 of DOMA as unconstitutional, and remanded Perry on standing grounds. Everyone already knows this. It’s been all over the news all day.
Let’s talk about what really happened.
First, let’s talk about DOMA. Justice Kennedy wrote the opinion for Windsor. I’ve talked about how important that is before: Kennedy wrote Romer v. Evans and Lawrence v. Texas. He’s been the most consistent guardian of gay rights on the Supreme Court, and he really went to bat for us today. In Windsor, the only § 3 of DOMA was before the Court. § 3 is the one that required the federal government to limit marriage to heterosexual couples, and denied the privileges of marriage to legally married homosexual couples (§ 2 is the one that allows states to decide whether or not to acknowledge a couple’s legal marriage in another state). A court can only consider the question it is presented with, and as I said, the Supreme Court was only presented with the question of § 3’s constitutionality. That didn’t stop Justice Kennedy: Kennedy eviscerated DOMA. He tore apart the entire statute from its inception, describing the nasty, hateful purpose Congress had in enacting DOMA and the many harmful effects it has had.
What does this mean? Right now, only § 3 is affected. But Kennedy opened the door very wide for legal challenges to § 2. State sovereignty is really the only quasi-legitimate obstacle…and since that’s not a legitimate reason for ignoring anyone else’s marriage, I doubt that’ll last long. Watch this space.
Now, let’s talk about Prop 8. I know a lot of my friends were initially upset that Perry was kicked on standing grounds, because the press had built it up as if there was some way Perry could require that all states permit same sex marriage. That was never going to happen. Remember what I said about how a court can only consider the question it’s presented with? That wasn’t the question in Perry. So let’s remember: we didn’t take Perry to the Supreme Court. The Prop 8 supporters did. We won at the Ninth Circuit, right? The Prop 8 supporters were asking the Supreme Court to bring back Prop 8. The Court told them to sitchoassdown. They weren’t permitted to even ask, and in fact, they shouldn’t have even been permitted to sue to the Ninth Circuit. They should have sat down a long time ago. This was a slam dunk for us.
When do people start getting married? Kamala Harris, California’s Attorney General, has already asked the Ninth Circuit to lift its stay immediately, so California can resume marriages. Governor Brown has already ordered all counties in California to issue marriage certificates to all couples who want one as soon as the stay is lifted. It could take as long as 25 days…but it might happen before that.
Where are we going from here? DOMA is mostly dead. Prop 8 is dead. There is still work to be done. We lost the core of the Voting Rights Act yesterday, and we need to fight to rebuild that; that’s a priority. Our civil rights are everyone’s civil rights. The NSA is running out of control, and we need to work on ways to rein it in. And state by state, women’s rights are being eroded. If you weren’t watching when the Texas Senate tried to pass SB5 illegally by forcing a vote past midnight and changing the timestamps on its own Senate website, go read what’s happening in the world. We’re not done. Our civil rights are everyone’s civil rights.
Justice for ALL means we don’t get to stop fighting once we get justice for some. Let’s get to work.