The Supreme Court Same-Sex Marriage Rulings Were Historic, but Not Enough

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The Guardian

The Supreme Court Same-Sex Marriage Rulings Were Historic, but Not Enough

America will be a kinder place for gay couples now, but the battles do not end today. 37 states are without marriage equality

On 26 June 2003 – exactly 10 years ago – the supreme court transformed the lives of gay Americans with a landmark ruling, Lawrence v Texas, that struck down the country's remaining sodomy laws. It was a grand victory for gay Americans. But Anthony Kennedy, the justice who wrote the opinion in Lawrence, stopped a little bit short. He declined to say back in 2003, "whether the government must give formal recognition to any relationship that homosexual persons seek to enter". More importantly, he didn't say whether gay people were a minority entitled to the equal protection of the laws – only that gay sex was private conduct, and therefore none of the government's business.

Ten years later, on 26 June 2013, Anthony Kennedy again made a major stride forward for gay rights. And once again, he stopped just a little too short.

The supreme court, in the case of US v Windsor, has finally struck down the central provision of the Defense of Marriage act (Doma), the national law that deprives married gay couples of all the federal benefits of marriage. For gay couples married in the 12 (soon to be 13) states that permit us to wed, this is tremendously good news. For more than a decade, legally married gay couples have faced discrimination on everything from taxes to immigration to social security to pensions. Ruth Bader Ginsburg, at oral arguments, memorably called these "skim-milk marriages" and today, the court ruled that the two-tier system Doma created could not stand.

Kennedy, joined by the four justices of the court's "liberal bloc", had no time for the arguments of the law's defenders that Doma was somehow not discriminatory – that it was merely an attempt at good housekeeping on the part of the federal government while states debated who could marry and who could not. "The principal purpose is to impose inequality," wrote Kennedy. Doma did nothing to help anyone; its only function and only goal was to harm a disadvantaged group, in this case gays and lesbians:

"The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States…. Were there any doubt of this far-reaching purpose, the title of the act confirms it: The Defense of Marriage."

The result of Doma, Kennedy goes on, is the creation of "a second-tier marriage" for gays and lesbians. He uses quite strong language in his dissection of the inequality Doma creates. Doma "demeans the couple, whose moral and sexual choices the Constitution protects" (that protection, of course, is a result of Lawrence). Doma also "humiliates tens of thousands of children now being raised by same-sex couples". These words are stirring stuff, and when Kennedy finds that Doma violates the Constitution's "basic due process and equal protection principles", you almost feel like partying.

Kennedy's decision in Windsor telegraphs, in its entirety, that gay couples, and by extension gay individuals, are deserving of legal equality, and that the Constitution protects our rights. For that alone the decision is a landmark. But here's the thing: he doesn't exactly come out and say so. States' rights champion that he is, Kennedy overprivileges the "sovereign authority" of New York to define marriage as it likes, without the federal government getting in the way.

Nor does Kennedy take the step that both Windsor's lawyers and the Obama administration argued for: that laws affecting gay people deserve what's called "heightened scrutiny", a rigorous standard of review afforded to classes that have faced discrimination. Because Doma is so baldly discriminatory, failing even the lowest standard of review, Kennedy didn't address head-on the larger question of how to assess all laws targeting gays as a class. Justice Antonin Scalia, in his virulently homophobic dissent, calls this "legalistic argle-bargle," and I have to admit he has a point. Doma contravenes the Constitution's equal protection clause, yes. But the more general question of whether gay individuals are entitled to the full protections of the constitution – and therefore have a right to marry – remains dismayingly open.

Of course Windsor was not Wednesday's only gay rights case: we also got a decision, a strange one, in the matter of California's Proposition 8. When it first entered the federal system, it seemed that Hollingsworth v Perry would force the supreme court to say once and for all whether gays had a constitutional right to marry. Yet a quirk in the case (the former and current governors of California declined to appeal after the gay couples won the first round) meant that the supremes could duck the substance of the case. Same-sex marriage will be legal once again in the largest state in the union. But the court declined to use Perry to say anything about same-sex marriage – in a 35-page document, the word "gay" is used only once.

After all this waiting, after years of court challenges and media speculation and public arguments and political outbursts, it's understandable that we all want to celebrate. Yet Wednesday's two wins are only a partial victory. While California will enjoy marriage equality soon, 37 states still won't. Another part of Doma, which allows the states (rather than the federal government) to refuse to acknowledge legal gay marriages, remains in force. So if you marry in Massachusetts and then move to Alabama, you'll still be ineligible for state benefits. Other laws that discriminate against gays, concerning housing or employment or HIV status, remain on the books. While Windsor may make it a little easier to challenge them, it's not a slam dunk.

The other decisions this week by our aggressively conservative supreme court, rolling back civil rights protections for racial minorities and for women, have made today's triumph a fraught affair. Monday's decision in favor of corporations rather than victims of harassment, and Tuesday's outrageous and indecent gutting of the Voting Rights Act, should remind gay people that formal civil equality, once we win it, will still not be enough to safeguard our rights. It takes constant struggle, and our battles do not end today.

But then I think of Edith Windsor, the implacable New Yorker who refused to be treated as a second-class citizen, and who at the age of 83 decided to sue the United States. Windsor met Thea Spyer, her wife, in 1963: long before Stonewall, when gay equality was an unthinkable fantasy. In her later years Spyer was confined to a wheelchair due to advanced multiple sclerosis, but together they traveled to Toronto to marry, since New York didn't yet permit them to. When Spyer died, Windsor was smacked with a tax bill of over $300,000, since in the eyes of the federal government Thea was not her wife, not her lover of nearly half a century, but only a stranger.

It was intolerable. But today Windsor won. She'll get her money back, with interest. The president called her to congratulate her. This Sunday, at the gay pride march in New York, 83-year-old Edie Windsor will be leading the parade down Fifth Avenue. And I and a million others, gay and straight alike, will be there: screaming our lungs out in gratitude to Edie, celebrating our victories, and pledging to keep on fighting.

Jason Farago

Jason Farago is a New York-based writer and critic who contributes to the London Review of Books, Monocle, n+1, and other magazines. He is also editor of The Bugle, an American publication on culture and ecology

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