Explainer: What the Gay Marriage Rulings Mean for NY, NJ

Tuesday, June 18, 2013

The Supreme Court ruled today that the Defense of Marriage Act is unconstitutional, and dismissed the California Prop 8 case. But what do the rulings mean? We have (some of) the answers.


What was the DOMA ruling today?

The Supreme Court struck down Section 3 of the Defense of Marriage Act - this means that gay and lesbian couples married in a state that has legalized same-sex marriage will also receive federal benefits. In short, they are entitled to equal treatment under federal law.  It was a split decision, written by Justice Kennedy and joined by justices Ginsburg, Breyer, Sotomayor and Kagan. Basically, it came down as court watchers predicted it would.

Gay couples who are married in New York will now be recognized as married by the federal government. The decision explicitly says it applies only to couples whom a state considers married - civil unions, like in New Jersey, will still not be recognized.

Does the DOMA decision mean gay people have a right to marry?

No. It just means that if states decide that they have that right, then  the federal government will recognize it. 

A side note - different federal agencies parcel out marriage benefits differently. The IRS and Social Security Administration currently consider you married if you are legally married in the state you reside in, not where you got married, though the Obama administration is now reviewing this. If nothing changes, though, then if you get married in New York and move to Florida, the SSA would not consider you married for their purposes. The Defense Department, on the other hand, considers you married if your marriage was legal in the jurisdiction where you received a marriage license.

And what happened with the Prop 8 case?

The Court rules that the petitioners did not have standing - the Circuit Court  should not have been able to hear the appeal, because the state of California had declined to pursue it.  This clears the way for gay marriages to resume in California, but it does not affect the other 49 states. From the opinion: "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."

[Update: On June 28, the stay was lifted. Same-sex marriage is once again legal in California.]





What's at stake here?

The Supreme Court's rulings could be narrow or wide-ranging. They could legalize gay marriage throughout the country or or uphold denying same-sex couples the right to marry. Currently, 12 states and Washington D.C have legalized gay marriage, including Delaware beginning July 1, and Rhode Island and Minnesota beginning August 1.

In a second case, the court is considering whether the federal government should recognize same-sex marriages performed in states where they are legal, like New York. Currently, the government does not recognize those marriages.

(See what the ruling would mean for New York City here)

Wait. I wasn't paying attention. There are TWO cases?


Yes. The court combined two same-sex marriage cases. Hollingsworth v. Perry -- known as the Prop 8 case -- seeks to overturn the ballot initiative that limited marriage to be between a man and a woman in that state. United States v. Windsor challenges Section 3 of the Defense of Marriage Act — the part that says the federal government can't recognize as legal same-sex marriages performed in the states.


(For deeper analysis of the Windsor case, listen to Slate senior editor Emily Bazelon talk to WNYC's Marc Garber.)



(To hear analysis from the lead council on the constitutional challenge to Prop 8 - listen to David Boies talk with WNYC's Amy Eddings)



Can the Supreme Court legalize gay marriage in all 50 states?

It can -- but likely won't. Court watchers think that the most likely outcome is a narrow ruling that would return same-sex marriage to California and overturn Section 3 of the Defense of Marriage Act, or DOMA. This would mean that the federal government would recognize gay marriages performed in states where they were legal (like New York and Connecticut), and residents of those states would have access to federal benefits, like the right to Social Security survivor benefits. Eight federal courts have ruled that Section 3 of DOMA is unconstitutional. The section of DOMA that allows states to refuse to recognize same-sex marriages performed in other states would stand.



What about states that have civil unions? Will the federal government consider people in civil unions eligible for federal marriage benefits, if DOMA is overturned?

This is a very tricky question, best answered at length by Cornell Law Professor Michael Dorf. The short version? It's up to the Executive Branch to decide if civil unions (like those in New Jersey), or a state-wide, robust domestic partnership law (like in Oregon), equals marriage. [Update: Since Kennedy's decision specifically said it only applied to legal marriages, civil unions and robust domestic partnerships are not included.] If they do, then gay residents of New Jersey, Oregon and other states with similar laws will have access to the same federal benefits that married people have, including being able to sponsor a foreign-born spouse for citizenship. Once the government has decided, though, the courts will rule on whether the Obama Administration made the right call.

(Photo: Getty Images)

Is there any sense of how the Justices will rule?

Observers say the Supreme Court ruling is likely to be a step forward for gay marriage -- but not necessarily a leap for the LGBT civil rights movement. California will likely be added to the same-sex marriage roster and states with civil unions or domestic partnerships may be folded in as well.

The federal government will probably recognize gay marriages in states where they're performed legally. This is a big deal, because currently there are 1,138 federal benefits of marriage, including Social Security survivor benefits and benefits under the Family and Medical Leave Act. But there will still be a number of states which will not recognize gay marriages, even if the couple was legally married in, say, Connecticut, and even if their marriage is legally recognized.

This means that if a gay couple who is married in New York moved to, say, Mississippi, then the federal government would recognize their marriage but the state would not. This might mean that they can't get divorced, and may have trouble in family courts, among other issues.

Will Prop 8 be overturned?

Most likely -- but maybe on a technicality. About 18,000 same-sex couples were married in California between the day gay marriage was legalized there in June and election day in November 2008. Whether that ballot initiative, Proposition 8, was legal, is a question that's been wending its way through the courts ever since.

There are five options for the Supreme Court in this case.

The court could say that Proposition 8 is legal and that states may restrict marriage to opposite-sex couples.

The court could hold that the 14th Amendment -- known as the Equal Protection clause -- prohibits states from discriminating against same-sex couples when it comes to marriage rights.

The court could rule that states like California (and five others, including New Jersey) that offer a marriage-like equivalent must immediately convert civil unions or domestic partnerships to marriages.

The court could hold that any state having a marriage-like institution (or, as Justice Ruth Bader Ginsberg said, a "skim-milk marriage") AND that had formerly legalized same-sex marriages must make same-sex marriages legal. This would apply only to California.

The court could say that those arguing that Prop 8 be upheld actually had no standing to do so, once the state of California decided that they supported the overturning of Prop 8 in the District Court and would not appeal that court's ruling.

After the oral arguments, some journalists noted that the Justices seemed very concerned that the proponents -- or defenders -- of Prop 8 didn't have standing to appeal after the District Court overturned Prop 8. If they rule that there was no standing, then the ruling of the District Court would prevail, and California would have legal same-sex marriage.

What about the heightened scrutiny question?

Meaning, will the judges say that the court must apply a stricter test to gay and lesbian discrimination cases, the way they do for cases having to do with, for example, women or African Americans? This seems like inside baseball, but it's important. If the court said that gays and lesbians should be protected in this way, then laws that discriminated against them as a class would be viewed with greater suspicion. But it seems unlikely that the Justices will rule that way.


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Comments [8]

Lucas from Selmer, Tennessee

I live in Tennessee with my partner of near two years. we went to the local court house about a month before gay marriage was legalized by fed level. they told. us we were not allowed by state law to get married in this state. now it's legal at the federal level. my partner and i simply wish to get married. there's a possibility, doctors say, he won't make it past 40 years old. he wants me to be taken care of financially if anything happens to him. is there a possible way we could get married even though the state of Tennessee does not allow it here?

Jul. 14 2013 04:08 AM

It means more natural disasters for all. It's a democracy though - so what the majority think is right will stand. Just don't be surprised at what happens.

Jun. 27 2013 09:40 AM
Mr. Bad from NYC

First of all this "explainer" is not explaining anything correctly. Specifically with regard to IRS and SSI regulations it is unclear whether or not they will extend federal marriage benefits to couples legally married in New York (no residency requirement) but residing elsewhere. NJ, for instance, may not recognize Gay Marriage in their state but they also cannot "unmarry" a couple lawfully married in NY, i.e. neither state can violate the others sovereignty. The IRS recognizes "common law" marriages established in common law states even when that couple moves to a state with no common law marriage so there is no clear answer. Finally, the SSI and IRS rules are just that, rules, not laws, they are not legislated which means they could change tomorrow barring legislation that specifically bars those rule changes.

This is a legal controversy, there is no clear answer. What if, for instance, a gay couple married in NY but one resided in NY and the other in NJ? It's entirely possible. The more likely answer (especially if you've actually read the DOMA decision) is that a legal gay marriage in any state will have to be recognized by the Federal Government and all agencies. Just read the syllabus to the decision (only 3 pages) or this excerpt, even if they didn't strike DOMA 2 the majority view of it's viability is doubtful:

"...It contrives to deprive some couples
married under the laws of their State, but not others, of both rights
and responsibilities, creating two contradictory marriage regimes
within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of
federal law, thus diminishing the stability and predictability of basic
personal relations the State has found it proper to acknowledge and
protect. Pp. 20–26. 699 F. 3d 169, affirmed."

Jun. 27 2013 09:04 AM

Hi Tara,

The map reflects where gay marriages are currently legal - so, we'll update Delaware on July 1, when they go into effect there!

Jun. 26 2013 02:47 PM
Tara from Wilmington, DE

This map isn't completely up to date. Delaware has allowed Civil Unions for some time now, and just recently (May) passed full marriage equality.

Jun. 20 2013 09:26 AM

When I was at Bryn Mawr there was a pretty serious, nerdy science major who declared that her life project was to realize parthenogenesis for humans. So your contribution may not be needed.

Jun. 19 2013 09:25 PM

@daniwitz13: Ah, so that's what the newest brand of sophistry looks like. Thanks for informing us! And as a gay male, let me just say that I can't wait to have the right to enjoy the discomfort of pregnancy.

Jun. 19 2013 01:33 PM

Gays will not accept “separate but equal”. right? They demand full equality, right? Whatever Heterosexuals have as a Right that they can have and do is their goal to have also, right? Therefore, (according to them) when the High Court rules that they are EQUAL in every way to have and do every Right that Heterosexuals have, come Aug. 1st 2013, Homosexual Couples will have the same Rights as Heterosexuals to give birth to Humans from their “spouse”. Hospitals will have to scramble to develop new operating rooms, equipment and new specialist to accommodate Men “spouses“ giving birth. The High Court has found the section for this ruling in our Constitution under Equal Rights under the Law. That each Couple has the Right to do the SAME things. Giving birth is one of them. The High Court was deciding to let them Marry but not bear Children , but concluded that “separate but equal“ .was not an option for the Gays. So had to put it in, for Equality. If the High Court says that Same Sex Couples can get Pregnant from their “spouse”, who am I to say other wise. They are much smarter than me. Pity.

Jun. 19 2013 02:22 AM

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