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June 26, 2013
Editorial: A victory for equal rights, but an incomplete one

Gay_Marriage_California.jpg

(June 26 -- By the Editorial Board)

The U.S. Supreme Court bolstered the cause of same-sex marriage Wednesday, but sidestepped a chance to guarantee equal rights for all gay Americans.

Ruling on the narrowest of legal grounds, a 5-4 majority cleared the way for gay marriages to eventually resume in California, but didn't decide anything about same-sex marriages in other states.

In a second case, a different 5-4 majority threw out a key section of the federal Defense of Marriage Act, the 1996 law that prevents same-sex couples from receiving federal benefits available to other married couples. The ruling will affect more than 1,100 areas of federal law, including income tax, Social Security and veterans' benefits, but it left to the states whether to permit gay couples to wed or not.

While these highly anticipated decisions are a historic and welcome victory for equality, the court should have taken the opportunity to go further and establish a constitutionally protected right for gay Americans to marry.

Who knows when or if that landmark ruling will happen, but the seeds for it are taking root.

Justice Anthony Kennedy of Sacramento, writing for the majority in the DOMA case, said it violated the Constitution's equal protection clause for the federal government to treat lawfully wed gay couples differently than other married couples. DOMA "tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition" and confines them in "a second-tier marriage," he wrote.

The same is true no matter where gay couples live, yet the court has not touched another section of DOMA that allows states to refuse to recognize same-sex marriages performed in other states. Later Wednesday, Sen. Dianne Feinstein of California and Rep. Jerrold Nadler of New York reintroduced a bill to repeal DOMA in its entirety.

Until that happens, gay Americans will have different rights depending on their home state. That is fundamentally unfair. The state-by-state progress on gay marriage will be slower. It may, however, be more democratic than a judicial edict.

Clearly, the tide of history is moving toward equal marriage rights. Just since the Supreme Court heard oral arguments in the cases in March, legislatures in three states - Delaware, Minnesota and Rhode Island - have legalized same-sex marriage. When gay marriages resume in California, 13 states plus the District of Columbia - covering 30 percent of the U.S. population - will allow gay marriage. They include Maine, Maryland and Washington state, which last November became the first states to approve gay marriage through popular vote.

Poll after poll demonstrates growing acceptance by the public; in a Pew Research Center survey this month, 72 percent of Americans, even those who oppose the idea, said they believe universal gay marriage is inevitable. Twenty-nine states, however, still prohibit gay marriage in their constitutions. The high court didn't address those bans.

In the California case, the majority of justices said that supporters of Proposition 8, the 2008 ballot measure that banned gay marriage, did not have the legal standing to defend it after Gov. Jerry Brown and Attorney General Kamala Harris refused to do so.

The court's rationale creates a problem. It sets the precedent that a ballot measure, duly approved by voters, can be nullified if top state officials oppose it.

Justice Kennedy, who wrote the dissenting opinion, recognized this danger, saying that the majority ruling "does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials - the same officials who would not defend the initiative ..."

The high court's decision, written by Chief Justice John Roberts, leaves standing U.S. District Judge Vaughn Walker's 2010 opinion, which said Proposition 8 was unconstitutional and blocked the measure.

On Wednesday, the Brown administration told county clerks to start issuing marriage licenses to gay couples as soon as Walker's ruling takes effect, which could be a month or more away. There could be further delays caused by more legal challenges by gay marriage foes. About 18,000 gay couples married in California between the time the state Supreme Court recognized gay marriage and Proposition 8 passed.

A majority of justices, not wanting to move too quickly on a cultural controversy such as gay marriage, chose the most limited of the wide array of possible rulings. There's a history lesson: In legalizing abortion with the landmark Roe v. Wade decision in 1973, the high court went further than many Americans were comfortable with, contributing to the highly divisive politics that exists to this day on abortion.

Yet by skirting the broader constitutional issues, the high court delayed the day when all gay Americans have equality under the law.

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