The U.S. Supreme Court’s dual decisions essentially invalidating the Defense of Marriage Act (DOMA) and California’s Proposition 8 brought jubilation to supporters of LGBT rights. Finally, state-sanctioned gay marriage had the green light in California, and before long, it seemed, across the nation. For now, however, the technical grounds for the rulings leave a less than clear picture of how and when same-sex benefits will be administered at the state level. On top of that, the Prop. 8 decision may set an unsettling precedent.
Call it “growing pains.” United States v. Windsor, No. 12-307, slip. op. (U.S. June 26, 2013) found Section 3 of DOMA unconstitutional—the part defining marriage between a man and a woman. Yet, it left in place Section 2, which says no state shall be required to give effect to a same-sex marriage from another state. Marriages, which legally speaking are all about tax benefits and things such as adoption rights, are administered at the state level. While Windsor provides strong support for gay marriage in all states, ensuring that right in states that don’t allow same-sex benefits will require political change or more precedent-setting lawsuits. These efforts could take years.
So, what happens if a gay couple lives in a state with a ban—or simply no provision for—same-sex marriage? Unless they get married in another state, the Obama Administration has yet to figure out how to get them federal benefits. Even if they do marry in a state with gay marriage, their home state is not required to give the couple state benefits. Unless you live in a state like California, which has resumed gay marriages, the new normal is a headache of uncertainty in practice areas such as estate planning, family law, employment and tort damages.
In California, the situation is more clear cut. The Supreme Court punted the core issue in Hollingsworth v. Perry, No. 12-144, slip. op. (June 26, 2013) remanding to the Ninth Circuit Court of Appeals because the private citizens who tried to enforce the law after the state of California declined to do so lacked standing. That means the original, district court holding invalidating Prop. 8’s ban on gay marriage, affirmed by the Ninth Circuit, is back in effect. All that remained was for the Ninth Circuit to lift a stay on the issuance of marriage licenses, which it did.
Yet a more esoteric problem exists—at least for attorneys. Issue spotters have noted that this may be one of the first times a popular vote was overturned by the will of the state executive. Think about it: voters banned gay marriage, which led to a lawsuit that the governor’s office and the attorney general chose not to defend, which ultimately led to a dismissal for lack of standing, and thus, the invalidation of an otherwise legitimate law on purely procedural grounds. Who is to say a similar chain of events couldn’t happen again, allowing the state executive to railroad the voices of state voters?
The Supreme Court’s gay marriage decisions felt like a substantial victory for LGBT rights supporters—and they unquestionably were a huge leap forward. But equal rights have not arrived yet. For example, there is not yet a federal ban on sexual orientation-based discrimination in the workplace.
Legislation that would provide this protection is still in a Senate committee, lacking enough votes to pass. And while residents of liberal-minded states are closing the equality gap, LGBT individuals who live in more conservative areas are still facing an uphill battle for marriage benefits and other rights.