The plaza in front of the US supreme court was awash with rainbow flags and “marry who you love” signs yesterday as hundreds of gay Americans celebrated two historic victories for advocates of same-sex marriage.
“Seven years ago we literally had to leave the country to make a legal commitment to each other,” said John Becker, a 28-year-old who went to Canada to marry his husband. “Now I come to the supreme court in 2013 and hear that for the first time the federal government recognises the reality, which is we are not strangers, we are spouses.”
With yesterday’s decisions, the highest court in the US has taken a position on a social issue that has divided the country for years and continues to be a cultural faultline.
The court did not declare that gay and lesbian Americans have a constitutional right to marry. It did, however, say that the “equal dignity” of legally married same-sex couples was being violated when the federal government recognised only heterosexual marriages.
Five of the justices – Justice Anthony Kennedy, the swing vote on the bench, and the four liberals – ruled that the 1996 Defense of Marriage Act, which defined marriage as between a man and a woman, was unconstitutional for depriving legally married gay couples of this recognition.
Under the act, they were not eligible for the 1,110 federal benefits that straight couples enjoyed. Twelve states and the District of Columbia now allow same-sex weddings.
US president Barack Obama immediately ordered his administration to review all relevant federal statutes to implement the decision “swiftly and smoothly”.
With the second decision, the justices essentially declared that a lower court’s invalidation of California’s ban on same-sex marriage, which was passed in a ballot initiative in 2008, remained in effect. The court ruled that the proponents of the ban did not have the legal standing to argue that it should remain, when California’s state government was choosing not to.
Notably, the court did not divide along ideological lines on the second decision. Chief Justice John Roberts, a conservative, was joined by three liberals and one other conservative in forming the majority.
Although the decisions do not declare same-sex marriage is a right, they reflect a sea change in the US. A majority of Americans, including Mr Obama, now support marriage equality.
"Sometimes you have to listen to the music rather than the individual notes," said Tom Goldstein, editor of the Scotus blog. "The majority of this otherwise conservative court has said that these individuals deserve equal treatment."
The decision in particular reiterated that same-sex marriage was an issue for individual states and will probably give a boost to those state legislatures that were already moving towards allowing same-sex weddings, he said.
There will, however, continue to be strong opposition to the concept of same-sex marriage in the more socially conservative states of the US.
"Today's supreme court opinions on marriage are a stunning and indefensible display of judicial activism," said Ralph Reed of the Faith and Freedom Coalition, an evangelical Christian group.
Key provision overturned
But the rulings particularly cheered liberals, coming just a day after the court, with Justice Kennedy siding with the four conservatives, overturned a key provision of the Voting Rights Act, designed to ensure that states with a history of racism could not discriminate against voters.
However, legal scholars warned against drawing any broader conclusions on the court’s ideological leanings, noting that Justice Kennedy has been consistently in favour of marriage equality, even as he continues to hold conservative views on other issues.
The decision, written by Justice Kennedy, noted the controversy surrounding gay marriage and referred the matter back to the states.
That makes this decision different from Roe v Wade, the 1973 ruling that legalised abortion and was passed by a 7-2 majority, said Martha Davis, a law professor at Northeastern University.
“The opinion acknowledges the controversy but avoids a Roe-type eventuality by saying that this is a state issue,” she said. – (Copyright The Financial Times Ltd 2013)