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SCOTUS, Your Open Thread


by Meg Keene, Editor-In-Chief

SCOTUS, Your Open Thread | A Practical WeddingSCOTUS, Your Open Thread | A Practical WeddingDOMA Section 3 struck down by the Supreme Court this morning

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. —Justice Anthony Kennedy

We’ve got the baby cheering over here, and he doesn’t know why, but he will one day. I haven’t started crying yet, but it’s coming….

Prop 8 Dismissed on Standing

In short, that means that gay marriage is legal in California. The Ninth Circuit decision is vacated, and the district court decision stands, which in effect strikes down Prop 8 on equal protection. It does not, however, give us a broader ruling. This means that gay marriage is not legal everywhere in the US, it’s legal in states that have gay marriage. If a LGTBQ married couple lives in one of those states, they will have state benefits and federal benefits (since DOMA was struck down). However, if a couple marries in a state that has gay marriage, and live in a state that doesn’t, they will ONLY have federal benefits. (This is all based on a very early read of the decision, so of course analysis could change.)

We’re far from done yet. But for today, let’s celebrate. (I threw on the APW Pride Week banner because… what the hell!)

It’s your open thread. Tears, cheers, quotes, and links, have at it.

Photo of Lisa & Lee, who originated the Remember the Lesbians series on APW, taken by a generous stranger after MN passed marriage equality this year

Meg Keene

Meg is the Founder and EIC of APW. Her first book, A Practical Wedding: Creative Solutions for Planning a Beautiful, Affordable, and Meaningful Celebration, was published in January 2012, and has been a top three bestseller on the wedding bookshelf ever since. Meg has her BFA in Drama from NYU’s Tisch School of the Arts. She lives in the San Francisco Bay Area with her husband and son. For more than you ever wanted to know about Meg, you can visit MegKeene.com.

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  • http://www.laughterinthelou.com Emma

    Weeeeeeeeee!!!

  • manuscriptgeek

    Now will somebody tell me if my friends, a couple of 8 years separated by immigration law, can get married and get S. a green card yet?

    • KTH

      I would guess yes. Since this applies federally, it should apply to green card laws. Not a lawyer, though, so not giving legal advice here.

    • meg

      My lawyer husband just nodded and said “I think they probably can.” The question is if the administration fast tracks this for people.

    • Marisa-Andrea

      Immigration lawyer here: YES. Marriage is defined by the conferring jurisdiction. Let’s hope USCIS and DHS catches up.

      • KTH

        So glad to have such smarties in the comments here. Yay!

      • http://myneuroticgirlfriend@wordpress.com Sarah

        I’m an immigration attorney too, and I agree. There is an immigration lawyers conference in San Francisco this weekend and I will DEFINITELY be attending the panel on LGBT issues. I also eagerly await a USCIS memo.

      • Erin

        Going through the immigration process right now with my dude; I am hoping we can do some kickass fundraising to help gay couples get their petitions into USCIS too!

      • manuscriptgeek

        Thank you! So exciting.

    • http://prettypicturesbydanielle.tumblr.com/ Danielle

      You or they may want to check with Immigration Equality, a group that focuses on this issue: http://immigrationequality.org/

  • http://www.wrightremedy.blogspot.com Addie

    Sweet baby Jesus YES!!!!

  • http://landlockedlove.com Kelly

    YES! HELL YES! I am so happy I’m shaking!

  • Someone Else Today

    Hooray! Happy tears!

  • DKTX

    Yaaaaay!

    Can someone smarter than me tell me what this means for the states? Does everyone get same-sex partner benefits now?

    • http://landlockedlove.com Kelly

      I believe it means that in states where same-sex marriage is legal, those couples will be federally recognized. Tax Benefits, the whole shebang. It does not, unfortunately, extend to states where same-sex marriage is not legal.

    • Sarahrose

      If same-sex marriage is legal in their state, it will be recognized as marriage by the federal government. So not everybody gets it, but in the states where it is legal it becomes much more meaningful.

      “What this means, in plain terms, is that same-sex couples who are legally married will be entitled to equal treatment under federal law– with regard to, for example, income taxes and Social Security benefits.”

      – credit to SCOTUSblog

      • rys

        Right — and the key is equal treatment under *federal* law. So in states that recognize same-sex marriage, married couples of all stripes get the same benefits. It *seems* that a same-sex couple that gets married in, say, Iowa but lives in Nebraska (which does not recognize same-sex marriage) will receive *federal* rights/benefits (e.g., taxes, social security) even as they lack state-level rights. It also doesn’t apply to private corporations so this doesn’t mandate same-sex partner benefits be granted, for example. So striking down DOMA = very awesome and important, but not the end of the fight.

    • meg

      No. We’re waiting on Prop 8, which may well not go our way in a broad way. But no. You get state rights ONLY if you live in a state with gay marriage. We’re not done yet. (Unless we get lucky on Prop 8 in a minute.)

      • Margi

        Prop 8 DOWN!

        • meg

          No. Prop 8 wasn’t struck down in a broad ruling. It was remanded to the lower court. It’s legal here in CA, but not in all states.

          • Margi

            Oh ok. Off to read more!

          • Shiri

            What does it mean that it was remanded with instructions to be dismissed?

          • meg

            Shiri:
            9th circuit ruiling (which struck down Prop 8 but was narrower) was vacated/dismissed, so it goes down to the District Court ruling, which struck down Prop 8 on broader grounds (equal protection).

          • Erin

            Shiri:

            What SCOTUS ruled in Prop 8 was that the petitioner did not have the rights to defend Prop 8 (the petitioner in this case was not the State of California but rather a private entity which supported Prop 8), only the State of California has that legal right. As the State of California has elected NOT to defend Proposition 8, the case has been reversed to the District Court’s decision that Proposition 8 is invalid in the state. So essentially, if you were married before Prop 8 had passed, your marriage is now recognized on both the state level (California) and the Federal level (taxes, property, immigration, etc). It also means that gay couples can get married in California again so long as they apply to a district clerk who has stated that they feel Prop 8 is unconstitutional (speaking here of the State of California’s constitution).

            California will still need to reverse the actual Prop 8 law and strike it from the books, but long story long, go get yourself gay married in California this week!

    • kathleenicanrah

      here’s a handy graphic to explain:http://www.nytimes.com/interactive/2013/03/24/us/how-the-court-could-rule-on-same-sex-marriage.html

      basically, states that allow same sex marriage (12 states, plus District of Columbia) will now give same sex married folks the over 1,000 federal benefits of marriage.

      • Lacey

        So can you just go get married in a state where you aren’t a resident to get the federal benefits?

        • meg

          Yes, but not state benefits if you don’t live there. It’s going to be a bit of a legal clusterufuck.

          • http://Kinzieferguson.com/blog/ Kinzie

            All the more reason for the other states to get their shit together and achieve marriage equality across all 50 states!

          • Class of 1980

            I would assume the repeal of DOMA gives state citizens some ammunition in their fight to repeal anti-gay marriage legislation in their own state?

          • meg

            Kinzie-
            I think it’s going to need to be another SCOTUS challenge, probably to the other part of DOMA, that allows states to not recognize gay marriages from other states. Possibly an equal protection challenge??

            If we wait till TX and Alabama decide to pass gay marriage, we’ll be waiting far too long for full marriage equality.

          • Class of 1980

            I can’t understand why states can’t be challenged simply based on what our national constitution says about equal rights.

          • meg

            1980:
            That’s a really interesting question. I have no idea what the answer is. Lawyers??

          • tennymo

            We should be able to challenge state marriage bans (and some other discriminatory laws) using the “careful consideration” standard articulated in the decision,

          • rys

            Class of 1980: Federalism. States can do what they want in many realms (family law being one of the major arenas for state-by-state differences). Until SCOTUS effectively declares same-sex marriage a constitutional right (which the DOMA decision makes clear it did not), then states can act as they please in regard to marriage.

            Basically what’s needed is a Loving-esque case for gay marriage. In Loving, Chief Justice Earl Warren wrote: “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

            Kennedy’s DOMA decision tellingly a) used the 5th Amendment, not the 14th; b) clearly stated it did not deal with Section 2 of DOMA which allows states to make their own laws vis a vis gay marriage; and c) stated it made no claim via the constitutionality of gay marriage writ large.

            All this said, the argument that the federal government stays out of marriage law is not historically accurate, even pre-DOMA. See: Utah’s entry into the Union predicated on polygamy and, more importantly, military marriages outside the US being dependent on the permission of the commanding officer of the region (e.g. European Theater of Operations, Pacific Command, etc).

          • Class of 1980

            “Class of 1980: Federalism. States can do what they want in many realms (family law being one of the major arenas for state-by-state differences).

            Basically what’s needed is a Loving-esque case for gay marriage …”

            Yes, so WHY has there never been a Loving-esque case so far?

            State family laws are fine, but they should not include violating rights previously conferred by the Bill or Rights or Constitution. Once state law crosses over into denying rights that already exist, then it should be challenged.

            I can’t understand why no one has taken a Loving-esque type case to the Supreme Court yet.

          • Rose

            @Meg Please don’t lump Texas and Alabama together. Our state government is screwed up for sure, but we are growing more liberal every year. Gerrymandering and voter suppression (tactics Karl Rove tested in Texas before he brought them to the federal government) mask the situation, but look at Houston’s openly gay mayor. Look at Austin, San Antonio, and El Paso, progressive towns that together house over 4 million Texans.
            Sure, Rick Perry keeps getting elected, but at least once he was elected with a plurality, and Texans also elected An Richards.
            In 2006, Dallas only elected democrats to state office.

          • anon

            Maybe not! Sorry to be an agua-fiestas. Most federal rules look at state of domicile to determine status, not state of celebration. Now, this might be changed by the administration, but as the rules (for, for example, tax purposes) currently read, absent DOMA, the Feds look to the state where you live (or lived when you died), not the state where you got Married.

          • rys

            @Class of 1980: No Loving-esque case because a) law often moves verrrrry slowly — Loving came 13 years after Brown, for example and, more importantly, b) SCOTUS has never deemed sexuality a “suspect classification” or designated gay people as a protected class that triggers strict scrutiny in review of laws. Race-based classifications trigger strict scrutiny, no matter what, but this standard didn’t come about until the 1990s. Gender-based classifications only get intermediate scrutiny (and that arose thanks to RBG’s efforts as a litigator in the 1970s). From a legal perspective, there is still not yet a constitutional right to marry whom you please, just a constitutional barrier to forbidding interracial marriages and, now, to the federal gvmt not granting rights pursuant to state bestowing of marriage rights (or rites).

          • rys

            Different federal agencies use different standards — some state of residence, others state of celebration. See: http://www.npr.org/blogs/thetwo-way/2013/06/26/195881288/after-doma-whats-next-for-gay-married-couples

            A lot will be determined by how the Obama Administration tells federal agencies to comply with this ruling.

          • Class of 1980

            “From a legal perspective, there is still not yet a constitutional right to marry whom you please, just a constitutional barrier to forbidding interracial marriages and, now, to the federal gvmt not granting rights pursuant to state bestowing of marriage rights (or rites).”

            Not from a legal standpoint, but it sure is implied in the constitution/bill of rights.

            I’m a libertarian. I have a very hard time with the concept that we look to government for permission on who we can marry (as if we are children).

            As far as I’m concerned, the only beings who should be legally prevented from making decisions on marriage are minors and animals, on the basis that they can’t make informed decisions.

      • Elisabeth

        And that means that K and I are going to have one hell of a legally binding clambake in New York State, recognized by both NY and the feds. Holy shit, I still can’t believe that we’re actually going to BE married, and recognized as married. MARRIED.

        • KEA1

          OK, I had been holding it together until I read your comment. Your writing here and all of your glorious insights have been SO awesome, and K’s piece yesterday, since I didn’t get a chance to log in and comment on it, was one of the most moving pieces I’ve ever read on marriage. I can’t begin to express how glad I am, even though I’ve never met you and K, that the two of you will be able to have more recognition of and protection for the future that you are building together. Here’s to the remaining steps to full recognition happening quickly!

        • http://turningtoward.blogspot.com Kara H.

          YAY!!!!

        • Mezza

          YES. I am in the same state of disbelief (and geography). Isn’t it amazing?

        • Hintzy

          who’s chopping onions in my cubicle again?

          no seriously that just made me tear up, I’m so happy for you guys!!!

      • http://www.3upadventures.com Beth

        If I understand what I was just listening to on NPR, there are several such cases working their way through the courts challenging the state bans on gay marriage. I believe they said Nevada was most likely to make it to SCOTUS first.

    • http://thedilettantista.com The Dilettantista

      I have found this article semi-useful, at least in terms of clarifying some points:

      http://www.acslaw.org/acsblog/same-sex-marriage-and-states-like-mine

    • Breck

      Quick question: can gay couples who were legally married retroactively file federal taxes for the past few years (since they’ve been married) and get some money back?

      • manuscriptgeek

        Not a lawyer, but I’ve definitely seen people saying you can.

      • HeatherM

        NY Times has a free article up now that says YES, gay couples can now file up to 3 years back taxes- depending on the state that you live in. It sounds like the federal agencies may need month or two to figure out the nuts and bolts of these rulings though.

  • kathleenicanrah

    The arc of the moral universe is long, but it bends toward justice. -MLKjr

    • Class of 1980

      I wasn’t crying until you put this MLK quote up. It’s one of the most beautiful sentences in the world.

    • Kira

      …”if there is a steadfast commitment to see the task through to completion,” as Justice Ruth Bader Ginsburg reminded us yesterday.

    • Alexis C.

      Dr. King beautifully paraphrased Theodore Parker, an abolitionist and minister. Here is what Dr. King was referencing, from an 1857 book of sermons… It’s a good’un:

      “Look at the facts of the world. You see a continual and progressive triumph of the right. I do not pretend to understand the moral universe, the arc is a long one, my eye reaches but little ways. I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. But from what I see I am sure it bends towards justice.

      “Things refuse to be mismanaged long. Jefferson trembled when he thought of slavery and remembered that God is just. Ere long all America will tremble.”

  • ANOTHER MEG

    Amazing and wonderful and now I’m off to devour more on this news around the internet….

  • M.E.

    Just cried happy tears on the street!!! Hooray!!!!!

  • http://irvingplace.net Kayjayoh

    First the gutting of the VRA, then the up and down and back and forth in TX last night, now this. Emotional roller coaster, y’all.

    • http://irvingplace.net Kayjayoh

      BTW, it isn’t over for TX, either. The governor can call another special session, and keep calling them until he gets his way. Plus, with the VRA gutted, TX GOP has carte blanche to go ahead with plans for gerrymandering and voter suppression. We must hold and build our momentum.

      Stand with Texas. Stand with women. Stand with people of color.

      • LACEY

        And please don’t forget Texas! I hope the protests last night will hush the comments I hear on Reddit and other sites about, “This is why Texas should just secede.” As demonstrated, Texas women WANT rights, and freedoms, and equality, and protection under the law. So many of my fellow Texans are rejoicing that DOMA was repealed, and are angry that VRA was gutted. We are just like you! We are not a backwater!

        /plea

        • mira

          All last night, I just kept thinking: Texas feminists are *fierce.*

          I’d like to believe I’d show that much class and backbone if my state started trying to pass this kind of garbage, but I’m not sure I have that in me.

          Y’all amaze me.

          • Erin

            I’ll say this, Mira. It can be HARD to be a liberal in Texas. It means fighting, tooth and nail and pink running shoes, every day. It means working against gerrymandered districts that are designed to keep rich white dudes in power. It means not backing down, ever, and psyching yourself up to have fights like last night’s ALL THE TIME.

            So we totally appreciate your support and the support of all of our allies around the country and the world! And for those people (not here) who always ask: “why don’t you just move out?” It’s easy to move. It’s harder, and more important, to stay and fight.

          • LACEY

            @ERIN: Yes, I hate the “Why don’t you just leave?” question. Texas is my home. I will fight for my home, fight to make my voice heard, and fight to make my home a place where all are protected and all are welcome.

  • Paranoid Libra

    Straight Ally over here even near tears too. Didn’t think I’d get this emotional about it. I mean I knew it was going to be a big deal and I knew I’d be happy but this just gets at me. May my metaphorical unicorn babies love whoever they want and marry whoever they want. :)

    • ANOTHER MEG

      “May my metaphorical unicorn babies love whoever they want and marry whoever they want. :)”

      Annnnnd more waterworks. I’m so happy right now. The future looks so much brighter right now. I have so many friends this will affect pretty much immediately. There will be so. Much. Champagne. Tonight!

  • mimi

    In 50 years, this will just be one of the civil rights cases that law students read and can’t believe how things used to be. Cheers to SCOTUS on this historic day! My guy and I are getting married in 5 weeks, and it’s so nice to know that everyone now has that right.

    • http://www.craftybroads.com Cindy

      Mimi, just to clarify, the DOMA ruling does NOT give same-sex couples the right to marry anywhere they do not already have it. What it means is that the Federal government now recognizes same-sex marriages from states that allow is as such for federal purposes (taxes, social security, etc.) The Prop 8 ruling means that it will once again be legal in California, in addition to the other states that currently allow it.

  • http://www.wrightremedy.blogspot.com Addie
  • M.E.

    Amazing quote from SCOTUSBlog just now in answer to a woman who wondered if she could joint file taxes with her wife, “Perhaps for the first time ever, many people will be eager to file their taxes next April 15.” :’)

    • catherine

      damn straight! well, not straight…;)

  • http://threlkelded.net Emily

    I’m so, so happy right now. And so tired! I was up all night following my home state Senate drama. I can’t believe two such amazing things happened within ten hours of each other. Faith in the Universe restored a bit, truly.

    Now I can sleep…

    • Lacey

      Hi, fellow Texan! We’re all teary and bleary-eyed today, aren’t we?

      • Breck

        Some of us in CA, too! Preyonce and I were up late watching the live feed and trying to figure out what happened. As we finally crawled into bed, we decided if SB 5 did pass we were going to start a bus line that transported women all over the state so they could get abortions. And said bus would be covered in wire hangers.

        Needless to say, we were pretty thrilled when we woke up and found out we didn’t have to break our lease and move (among other obvious reasons)! YAY.

        • Rachel

          I have been thinking all week about some kind of transportation service for women who need abortions. When all this dies down a bit, I’m going to get in touch with Lilith Fund in TX about doing something like that. I would love to build up a network of people offering rides, but I would also just do it as a one-woman operation for anyone who needed it.

          This idea needs to happen.

          • http://www.smittenchickens.com SarahHoppes

            What a GREAT idea.

          • FC

            This is so important, but is totally a return to a pre-Roe world. My mother helped transport women who needed abortions across state lines to safe and legal abortion facilities in the the late 1960s and early 70s. And the campus chaplain at my alma mater would buy students plane tickets to the nearest safe and legal abortion provider (about a 5 hour drive away) during that time.

          • Breck

            Yeah, I was actually thinking about it in a serious, logistical sense last night, and now I’m getting kind of committed to the idea. I’m all the way over here in CA, but I’d really like to get involved in any way I can. I’ll email you!

          • meg

            I’ve been thinking about the need for this for weeks, anticipating this ruling. It’s why my feelings are still so mixed this morning. Joy mixed up with anger at remaining inequality. I’m well aware not everyone can afford to travel to get hitched and get rights. And they shouldn’t have to. SOOOOO! Keep me in the loop of your awesomeness.

          • Erika

            Bay Area local org (ACCESS Women’s Health Justice) that assists women securing rides, housing and funding for abortion services (in CA):
            http://accesswhj.org/

            National org that helps funding and connects to local orgs that can assist in the same way that ACCESS does:
            http://www.fundabortionnow.org/get-help

          • rys

            So needed. In a lot of states, alas, it’s transportation + housing, thanks to 24-hour rules and other such nonsense.

            Also, in light of attacks on abortion + VRA, rural organizing is so necessary because both ultimately harm rural people much more (less/harder access to clinics and state IDs, more time + money needed to access both, etc).

          • AlexN

            As an anti-aboortion feminist (yes we do exist) I must respectfully disagree. Abortion is harmful to everyone involved and, let’s admit, no one’s first choice.

            A far better thing would be to work to reduce the need for abortions in the first place. Better sex education, better access to preventative birth control, more support (moral and financial) for single mothers. These are what we must fight for. The system has already failed a woman when she must make that awful and difficult decision.

            NOT trying to derail this conversation, I just bristle when I read things written by women that assume all women must feel the same way.

            Back to: YAY! No more DOMA!!

          • anonforthis

            @AlexN

            As a woman who had an abortion on Saturday, I, like you said, bristled at your comment. You’re welcome to your opinions on the general subject, but I find it extremely dismissive to say that “abortion is harmful to everyone involved.”

            It was not an “awful” or “difficult” decision for me to make; my birth control failed, and my partner and I are not in a position to have a child (and we may never be). I had a pretty good experience with the medical professionals and the procedure as a whole. To me, it was mostly like a more rigorous visit to the dentist.

            Of course, I agree that with you that we need to improve sex ed, access to contraception, and support for families, but I had all these things, did everything “right,” and still had an unintended pregnancy. I’m beyond thankful that where I live there is plenty of access to safe abortions and my health insurance covers the cost completely. THAT is also something that we need to continue to fight for, so that every woman has the same options I did.

      • Paranoid Libra

        Oh ladies trust me it’s more than just Texas watching last night. I am on 4 hours of sleep. I don’t see much work being able to get done today.

        • LACEY

          Yeah, I’m at work, but totally worthless. I am reading, debating, crying, drying my tears, laughing, smiling, and generally a happy, exhilarated mess.

    • Rachel

      Same here! What an emotional 24 hours!!

    • http://acceptorchange.blogspot.com YetAnotherMegan

      I’m not even from TX and I was up half the night! I ended up going to bed before the confusion cleared, so I got to wake up to good news. And now more good news!

    • Rose

      Hi guys! Also a fellow Texan. I am sososo frustrated about the VRA. I think it will really set Texas back.

    • http://irvingplace.net Kayjayoh

      This made me cheer (and cry a bit):

      “At what point must a female senator raise her hand or her voice to be recognized over her male colleagues?” –Sen. Leticia Van De Putte

      • LACEY

        I burst into tears at that. FH was studying, so I was silently fist-bumping and trying desperately not to distract him. But YES.

    • Becca

      Oh lawd, I can’t believe I didn’t know about this (overworked, uninformed Texan here). So glad it BARELY didn’t pass!

      Now I must go and read up on this, stat.

  • http://moirakatson.com PAW

    Standing in the breakroom at work, full-body shaking and sniffling like mad. Today is a Good day.

    I think I’m going to go listen to “Same Love” and sob into my scarf.

    • http://moirakatson.com PAW

      P.S. Is it too early in the day for champagne?

      • Breck

        It’s never too early for champagne!

      • Mary

        My thoughts exactly!

      • JEM

        Never!

      • http://acceptorchange.blogspot.com YetAnotherMegan

        Isn’t that what a mimosa is for? Just go easy on the OJ if you want ;)

  • http://www.kindofamess.com Alyssa

    PROP 8!! DOMA! SB5!!!! SUCK IT!!!

    Dammit, after the filibuster last night and the decisions this morning, I AM DRUNK ON AMERICA!!!

    (Yes, there is much more work to be done, DO NOT KILL THIS FOR ME.)

    • meg

      The Prop 8 ruling is not the really good ruling we hoped for lady. It’s just ok. It’s fine for CA, it doesn’t make gay marriage legal in the US.

      • Val E

        I think it was an extremely slim chance that SCOTUS would have mandated gay marriage for all states (especially with the whole leaving marriage up to the states and all).

        • Jen

          Yea, it’s not what we hoped for- but it’s a solid step in the right direction! The decision in Windsor gives some legitimate reasons to think that SCOTUS is not far off from ruling that bans on gay marriage are unconstitutional! There’s enough in the Windsor decision to provide a solid foundation for a future ruling that prohibitions on gay marriage violate equal protection.

          The decision clearly affirms that the state’s power to define marriage is “subject to constitutional guarantees” and cites to Loving v. Virginia (I think at least twice in the majority opinion)- the case where the Supreme Court ruled that prohibitions on interracial marriage are unconstitutional. You can bet that when SCOTUS eventually strikes down bans on same-sex marriage, they’ll be citing this language in Windsor. This is no accident- the more liberal justices are laying a foundation here.

          And, there was a solid argument that DOMA was unconstitutional on federalism grounds- this was the least controversial argument and the court could have struck down DOMA on this ground alone. The court could have issued it’s decision on the very narrow ground that in our constitutional system, the federal government is a government of limited powers, that most power remain with the state, and that defining marriage is one of those powers. The court could have simply said that the federal government has no business interfering with a state’s definition of what marriage is. A decision on that ground alone would have had no bearing on what States are permitted to do- it would have left states free to define marriage as they pleased.

          But the court went beyond that- citing to principles of Equal Protection. This is HUGE. This is what makes Windsor relevant to future challenges to bans on same-sex marriage. And, I think, if I’m reading the decision correctly, that the way the Equal Protection principles are explained and applied, strongly indicates that SCOTUS will find bans on gay-marriage unconstitutional when it finally decides a case on the merits.

          I wish they struck down Prop 8 today. But I’m happy for any victory- and this is certainly more than I was expecting even though I hoped for much more.

          • Class of 1980

            Jen,

            Thank you for this analysis! Someone in the comments section of a major news article on the DOMA ruling alluded to exactly what you said here.

            I tried to find the comment, but couldn’t locate it again.

            States rights, as far as they go, are brilliant in the sense that you have 50 experiments in governing going on at once. We can see what works and what does not.

            However, states are not supposed to deny any rights bestowed by the federal government in the Bill of Rights or Constitution.

            Yet, they do it all the time. It used to be interracial marriage and now it’s gay marriage. I would think state anti-gay marriage legislation whould have been overturned simply by invoking the federal Constitution and Bill of Rights alone.

            But as you pointed out, the way the DOMA decision was ruled on, the path is clearer to outlawing any state legislation that takes marriage rights away from gays.

            Personally, that’s the way I’d like to see it happen. I think any state that ignores the Bill of Rights deserves to be called out on it.

          • EBASS

            I have to admit, I’m actually EXTREMELY disappointed in the Prop8 “ruling.” What people are forgetting is that Roberts and Scalia only supposed dismissing it (not actually a ruling), because it effectively prohibits citizens from suing their state on the constitutionality of gay marriage. This means that they upheld all of the other states’ marriage bans AND prohibited couples from suing to overturn those bans (see Roberts’ statement on refusing to rule on cases where citizens sue on constitutionality issues). This is actually a gigantic step in the wrong direction and no one is recognizing it.

          • art

            @EBASS, I’m not sure that’s correct. The finding was that the pro-Prop 8 individuals did not have standing because they could not demonstrate that the lower court’s decision (striking down Prop 8) caused them “personal and tangible harm” that could be remedied by a Supreme Court decision (i.e., upholding Prop 8). In the hypothetical case of a same-sex couple’s challenge of a state law forbidding same-sex marriage, the standing argument would be quite different, I would think (“personal and tangible harm” would be more clear). It’s a narrow decision, but I don’t agree that it’s a big step backward.

      • http://www.kindofamess.com Alyssa

        No, but I don’t think anyone really expected that. Hoped for, but I didn’t expect it. I’m taking small victories where I can and using optimism to bolster my resolve for the next fight.

        • Umpteenth Sarah

          And you have many reasons to be optimistic/happy — the justification for the Windsor case was based on equal protection, not federalism, and that is a HUGE win for the entire same-sex-marriage landscape, and not what people expected.

      • http://www.katemuehe.com/blog Kate

        The Justices have often been pretty outspoken about not creating law from the bench, which I think is actually the right thing and I am not surprised they took the most conservative line on Prop 8 and limited it to the issue at hand only– gay marriage in California. And in fact, did not write their decision based on the issue of gay-marriage, but on the legal issue of standing.

        Legislatures are law-creating bodies, with representatives voted on by the people. Though it may be but slow and painful, it is the right way to create policies that ensure equality for all.

        • meg

          Well, but straight marriages in CA are recognized in TX. So! It’s not just state by state, and I don’t think we’ll win the fight that way. Though progress progress progress.

        • Marisa-Andrea

          Prop 8 just wasn’t the right case to make declarations about marriage equality rights at the Supreme Court level.

          • Erin

            Yeah, ideally what we need is a case from a state where there’s been a state-voted constitutional ban on gay marriage because THAT will be the ruling we need. Prop 8 was a very important case on its own merits (and great precedent for in the future where private entities try to support a bill that the gov’t itself has no interest in supporting), but what we need is a case in which a gay couple WANTS to get married and live in their home state but can’t because of state law. That’s what will allow SCOTUS to give a Loving-type ruling.

      • http://andshelovesyou.com Lucy

        Interestingly, it is the ruling I was hoping for, living in a places where the backlash against so many broad, forward-thinking Federal rulings result is fierce and incredibly hard to counteract. Many couples I know here were hoping for a ruling that wouldn’t cause the state of Georgia to clamp down on them any harder than they are now (which is incredibly upsetting and hard).

        The work to legalize marriage is everyone’s work to do. That the justices did not decree what some of us wanted to hear today does not mean that we are voiceless. However, it’s up to us, those living in the states where marriage still isn’t legal, to convince people that this is a right that everyone deserves, not someone weighing on the merits of a legal case. It’s our work, and so will keep fighting the good fight.

        Still, this is a good damn day.

        • http://pinterest.com/katerees711 kate

          This is an interesting perspective. Thank you for sharing it.

        • meg

          I agree to some extent, I TOTALLY see where your coming from. BUT. The fact that my CA marriage is recognized in GA means we’ve still got some serious inequality. So I don’t know that we can wait till each state gets it together. I don’t think rights can wait like that.

          BUT. It is all of our work. Always. Still. For sure.

          • http://andshelovesyou.com Lucy

            Absolutely, I agree. I don’t think it should wait for every state on its own. If we’d waited like that for segregation, as an example, even more harm would have been done, as a result of the longer fight. It’s just that, with so many states having a constitutional ban on gay marriage, I don’t know if it’s the right time for a sweeping decision.

            However, if it is the right time (yes please!), I want it to be on a solid case. Prop 8 did not feel solid enough, for the country at large, for me to channel my hopes into.

          • Class of 1980

            I don’t want to wait for each state to come to it’s senses, because there is a greater issue here. The states with gay marriage bans are violating the Constitution and Bill of Rights that applies to every American citizen.

            I don’t care if some states aren’t ready for a sweeping decision. Too bad; so sad.

            We don’t take the Bill of Rights or Constitution seriously enough. Any legislation that proposes to take away the rights they guarantee, should be challenged immediately on the grounds that it violates those documents.

          • MDBethann

            But doesn’t Windsor make a broader case possible? I mean, if a couple married in one of the 12 states or DC where gay marriage is legal goes moves to a state where it is not (I’m thinking in particular military couples) and files taxes as “married” in that state and are denied, couldn’t that be a way to bring a lawsuit about raising the fact that states are not providing equal protection under the law to ALL marriage contracts from other states like they are Constitutionally required to do?

          • rys

            Windsor takes the lock off the door, but doens’t open it (yet) to making gay marriage legal everywhere in the US. I do think a military couple offers one of the best avenues for a lawsuit — given the repeal of DADT, they can be out and married. They’re also subject to living where they’re ordered to be, and thus have no ability to choose to live in a gay-marriage-friendly state.

        • Class of 1980

          On a side note about the state of Georgia clamping down … isn’t it amazing when you consider that Atlanta has a huge and proud gay population?

          • http://andshelovesyou.com Lucy

            If by amazing you mean appalling, yes.

          • Class of 1980

            Yeah, I did mean “appalling”.

            Atlanta is the state capitol and largest (by a long shot) city, with a huge gay population. It seems odd to pass anti-gay laws that ignore reality.

            But state legislatures are often light years behind the citizens.

          • Class of 1980

            57% of Georgians polled said they think gay marriage or civil unions should be made legal.

            http://www.freedomtomarry.org/states/entry/c/georgia

            Not that civil rights should be determined by a popularity contest ever. Just saying, the legislature is not reflecting what people believe.

          • H

            You forget that Atlanta is ringed by some rather conservative suburbs, and then there are the rural areas beyond that.

          • Class of 1980

            No, H, I can’t forget that. After all, I live in the north Georgia mountains. (Actually, I doubt the suburbs are as conservative as the rural areas.)

            I just find it funny that there is such a disconnect between daily life in the state capitol and what the legislature votes for.

        • Mira

          This is such a good point — it sounds a lot like what RBG has said about Roe v Wade, and how she would have supported a less-broad ruling. When I first heard her comments, it boggled my mind — but at the same time, it’s pretty hard to dismiss the strategic wisdom of someone who has been at the center of these fights for as long as she has.

          • http://andshelovesyou.com Lucy

            Yep.

            I think it’s important to understand that the Supreme Court has not assigned a higher level of scrutiny to a case on gay marriage. So effectively, the case for whether or not discrimination based on sexual orientation is unconstitutional has not technically been argued yet. When it is, I hope that all of these steps will be the work that paved the way for that decision, and we’ll move forward without much of a back slide.

          • ANOTHER MEG

            Yes- a good point. The backsliding of abortion rights should be a warning to us. We have to do this right. Marriage equality shouldn’t be forced on all fifty states at once, right now (I mean, it *should* already be there, but you know what I mean). We have to be careful if we want it to stick.

        • http://becomingbrown.wordpress.com Jennifer Lyn

          As a fellow Georgia-dweller, exactly. This is a great step in the right direction.

  • Jillian

    I’ve been frantically refreshing Twitter/FB for updates. After last night in Texas and now this, feels are emotionally tapped out. I’m so freaking happy, I’m dancing the rest of the day.

    • Vera

      Having gone to sleep early it has been amazing to wake up and see twitter/tumblr/facebook updates about last night/this morning.

  • Leanne

    Hey APW, THANK YOU for letting us get married in NY as part of your YAY NY celebration. Because of you, Anne and I will have access to federal rights and recognitions, at least in THIRTEEN states and DC!

  • http://namelessw0nder.blogspot.com Tasha

    This is such a pick-me-up from the awful news about part of the Voter’s Rights Act being overturned.

    So does this mean that a couple in a state that doesn’t recognize same-sex marriage could go get married in, say, Massachusetts, and continue living in their home state and receive federal benefits (just not state)? Or do they have to live in the state that authorizes the marriage?

    • http://acceptorchange.blogspot.com YetAnotherMegan

      Based on the early analysis, yes. If a state legally authorized the marriage, the federal government will recognize it. Other states may not, so if you go to a different state, you may be recognized federally, but not by the state.

  • Katie

    YEAH!

  • http://ladybrettashley.wordpress.com lady brett

    that’s good. now if only the law weren’t so utterly baffling – i’d love to know what this actually means (in a details sens; i’ve got it in a “movement” sense). i suppose i’ve got some personal logistical conversations to have now =)

  • Marisa-Andrea

    I have mixed feelings about this session. Some good decisions for immigration and DOMA and really, the ruling on Prop 8 was the right one I think. But what SCOTUS did to the VRA is just devastating. I cannot comprehend it.

    • Val E

      Legally, I think I understand the concept. Antiquated formulas do need to be updated. However, it just utterly wounds me that they’d strike out the most vital section of the VRA without Congress having a more progressive formula waiting in the wings somewhere. It’s so utterly heartbreaking because there’s no quick fix for what has been done.

      • http://acceptorchange.blogspot.com YetAnotherMegan

        Not only is there not a new formula waiting to be implemented, but there’s not even a functional Congress that can work together to compose and implement a new one. Who knows how long it will be and how much damage can be done in the meantime.

        • Marisa-Andrea

          Given the voter suppression efforts we saw just with this last election, the states involved, even if we HAD a functional Congress, I just don’t see Section 4 being rewritten to address what Ginsburg referred to as second generation efforts to disenfranchise. I am literally in tears over what they did with the VRA.

          The VRA did get passed against all odds so maybe we can do it again with section 4 but this was just devastating and heartbreaking. I should be optimistic I know. I just need to feel heartbroken for a moment then move on.

      • MDBethann

        Right. A 40-year old formula is BAD. Congress was incredibly lazy in 2006 and didn’t do the work it should have done.

        And with all of those voter ID laws waiting in the wings (Virginia is one of those states), this could have a host of implications in the 2014 mid-term elections.

        • Marisa-Andrea

          I don’t know if I agree with that. Those covered jurisdictions including Shelby County have continued to try to institute election rules to disenfranchise (also as evidenced by the compilation of data showing the number of objections in preclearance, etc) and it’s only due to preclearance that they didn’t go through. If anything in 2006, Congress showed that preclearance was still needed for those covered jurisdictions (Shelby county didn’t even ask for a bailout — smart and risky move on their part which paid off).

          Plus, Congress only had to show that its reauthorization was rational and I think there was plenty of evidence to conclude that it was.

          • MDBethann

            But maybe if Congress had included that information in justifying its formula and not just keeping the formula from 1964 “as is,” SCOTUS wouldn’t have ruled the way it did.

            I completely agree that the reason things are better in the preclearance jurisdictions is BECAUSE of preclearance. But apparently that argument wasn’t made.

            But also, because of changing demographics over a 40-year period, there may have been parts of that formula that could have changed. Or maybe they could have added more states by changing the formula. My point was, Congress just “renewed” but apparently didn’t verify if what they were doing was still applicable.

            Now, we’ve got a Congress that is supposed to “fix” the problem but likely won’t do anything about it because the House of Representatives is currently run by people who act like they don’t care very much about minority rights.

            So I still call lazy on Congress in 2006.

  • Blizalef

    I am so thrilled to hear this!! I realize there is still work to do — to really make gender & orientation equality a reality, across the board — but D.O.M.A. being tossed out is definitely a step in the right direction! YAY!

  • http://www.smittenchickens.com SarahHoppes

    I know there is SO MUCH more progress to be made until there is FULL equality, but for the moment, I want to say “FUCK, YEAH!” and “SUCK IT, BIGOTS!”

  • Rachel
    • http://www.twitter.com/babyinabar Shotgun Shirley

      Nice!

  • Sarahrose

    Anyone know what the effect will be for states with civil unions but not yet full equal marriage? I’m guessing they don’t get the federal benefits…thoughts?

    • Umpteenth Sarah

      I think those people would need to get married-married before they received federal benefits… but I bet some lawsuit is coming that will clarify that.

    • Bonnie

      The majority opinion in Windsor makes clear it only applies to legal marriages (ie not civil unions):

      “The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State….This opinion and its holding are confined to those lawful marriages.”

      • rys

        Yeah the “lawful marriage” makes clear that civil unions don’t cut it. Marriage is still the barometer. At the very least, one hopes that states that grant civil unions but not marriages will make that leap so as to enable their residents to acquire federal rights/benefits.

  • Lydia

    Pardon my french, but FUCK YES!!!

    • http://emilytakesphotos.com Emily

      Don’t you mean “Fuck Oui?” ;)

  • http://www.smittenchickens.com SarahHoppes

    Also, this quote really punched me right in the gut: “We’ve got the baby cheering over here, and he doesn’t know why, but he will one day.”

    • http://pinterest.com/katerees711 kate

      I cried each time I read that, thanks for sharing Meg.

  • Class of 1980

    Two words: JUSTICE PREVAILS!!!

  • TH

    I’m so happy I could cry. The DOMA decision is going to help so many of my friends. Prop8 may not be the perfect decision, but it’s a step for CA and that’s something to be cheered for as well.

    So much love to the universe right now -my heart swells.

  • Breck

    Somewhat unrelated, but if you are not following @jillbidenveep, you really need to start. Her latest tweet:

    @ricksantorum U mad bro? #equality

    Her feed is pure gold.

    • meg

      <3

  • elle

    YAAAAAAAAAAAAAAAAAAAY!!!!!

  • http://embracerelease.com Aly Windsor

    I’d like to say this FB but can’t because my mom and employer read it so can I just say here:

    SUCK IT, HOMOPHOBES!!!!

  • Moe

    Proud. That I was here to witness this day. That one day when I am old and gray I can explain to my grandchildren that when I was their age gay people were not allowed to marry and how far we have come.

    Happy. Happy for my colleagues and friends who can enjoy the same benfefits that I have. Last week I got a discount on my auto insurnace rate because I’m married now. I’m not sure how being married makes me a better driver, and then I wondered if gays get the same lower rate.

    Excited. For my gay nieces who will now get to the choice to commit to who they love.

    Also….thankful. I’ve been hesitant to comment on any of the APW postings this month because I’m not gay and was so fearful that I would make a comment that was hurtful or insensitive out of ignorance. I am the proud aunt to my gay nieces who are young remarkable women. My family has not always been accepting and in my own nerdy painfully uncool older aunt kind of way I’ve tried to be their champion and protector since my brother is no longer with us. The posts this month have been so enlightening. Thank you APW for creating this forum where people can express themselves and others can benefit from listening to them.

    • Elisabeth

      Moe, I really appreciate how honest this comment is. I don’t mind questions or comments that feel ignorant to the asker, if you know yourself know you’re genuinely wanting to understand more, without judgement. I’m glad your nieces have you.

  • Sara

    On a side note from the wonderful news:
    While I am faithfully reading the SCOTUS blog, I am so happy this open thread is here. All you brilliant people just explained the parts that were confusing me :) Thanks APW!

  • http://embracerelease.com Aly Windsor
  • Rachel T.

    I cried. I called and texted my friends. I called my mom. I cried some more. My heart is just so full of happiness and joy – we’re making progress, and I feel like I’m surrounded by so much love and support right now. I haven’t seen any haters, so I’m going to continue to pretend they don’t exist and live instead in this little love bubble. With my happy tears.

  • Rachel

    Related topic….Houston Pride is on Saturday and I was wondering if anyone had suggestions for cute/witty T-shirt slogans for allies? I was thinking I’d like to have it say something about my dad but I’m totally at a loss for ideas.

    • http://blog.halfacregoods.com Erin

      At Columbus Pride this past weekend there were lots of shirts that said things like Legalize Love and a few others similar to that. My takeaway was that love was the message on most of the shirts I read. :)

    • http://www.meanestlook.com Sara

      Maddie has a pic of my son in a t-shirt I designed for our Pride a couple weeks ago. Ask her to forward it. It says: I <3 my gay Uncle Mat(t)s

      It was a big hit.

  • SamiSidewinder

    DAMN THOSE 200 WHITE KNOTS I TIED WERE FOR NOTHING! YEA!!!!! But damn…

    • meg

      Well, no, they were not! We still don’t have gay marriage on a national level yet, so you should sure as shit have your guests wear them and tell them why.

      • Vera

        What /are/ they for?

  • http://www.devabydefinition.com deva

    I logged onto Scotusblog mere minutes before the announcement was made. As soon as I read that DOMA was ruled unconstitutional I started shaking and crying and texting my sister and husband. The crying was instantaneous, and I hadn’t realized how much I wanted this until that very moment. I’m still shaking and crying and just SO DAMN HAPPY.

  • http://pinterest.com/katerees711 kate

    Here’s the call from the President with the Prop 8 couples.

    https://www.youtube.com/watch?feature=player_embedded&v=qYbSV_32OJY

  • http://emilytakesphotos.com Emily

    Ok, I managed to hold it together this morning (despite my lack of sleep after staying up late last night to watch the Texas legislature), but when they highlighted California in this video, I completely lost it. So incredibly proud today. https://www.youtube.com/watch?feature=player_embedded&v=ZAhLbC9CVoM#at=109

  • catherine

    It felt like Christmas morning yall! My female fiance and I woke up at 7 am, checked our emails, turned on the news, etc…Got the best news! Feel so happy and lucky to live in California, but now- next stop – nationwide equality!! The ball is rolling….oh yeahhhhh

  • Sarah

    This was the best news to wake up to this morning. One of the few news cycles that had me happy to be in the Pacific Time Zone. Hooray for Marriage! Also: Hooray for divorce and estate protections!

  • LACEY

    Can we talk about the ICWA decision? http://www.abajournal.com/news/article/scotus_sides_with_adoptive_couple_says_indian_child_welfare_act_doesnt_appl/ Cause I have super mixed feelings about it. On the one hand, the decision undermined ICWA, which considering this was only two years ago http://www.npr.org/2011/10/25/141672992/native-foster-care-lost-children-shattered-families is still apparently a very important law.

    On the other hand, I am not so sympathetic with dear old Dad here. Someone talk me through this.

    • rys

      I think it’s a heartbreaking case, with terrible facts, and those cases often make the worst decisions (what may be right technically can be devastating in real life and vice versa). There are real issues for tribal sovereignty at stake via ICWA as well as real issues for the autonomy of parents (male and female) as well as real issues for the best interest of the child. I’m not sure there was a right or good answer, and I’m still not sure what to think of the decision.

      • LACEY

        Yeah, I read the full decision, and the full dissents, and I came away feeling… sad. I do think that it’s good for ICWA that the decision was so narrow, but it’s a very tough case, and while I feel very strongly, I can’t decide which direction that feeling goes.

        • Erin

          It’s very much a case where you’re being asked to weigh the rights of an individual (in this case, Baby Veronica) against the rights of a frequently oppressed minority. It becomes harder when the person “speaking” for said minority does not seem like a very nice guy at all.

          I mean. Do I think that the biological father decided to show no interest in his child for the first year of her life because of his heritage? No. But that does not change the fact that ICWA is the law, and a good law at that.

          One of those days I’m glad I didn’t pursue a law career!

      • http://ladybrettashley.wordpress.com lady brett

        i think the specific case was a big dose of “no good answer” – at least, if it’s the kid you’re worried about. and as far as the legalities of the foster system/parents rights aspect, i certainly don’t know enough to say. but the actual ruling and case aside, the *wording* of the ruling (or the bits i have seen) is blatantly dismissive of tribal sovereignty and seems to disregard the point of ICWA, both of which i find deeply troubling for possible future rulings.

    • Claire

      RadioLab did a great segment on this case.

    • MDBethann

      I read through the decision on that yesterday. The whole ICWA law is NOT undermined. All they did was decide that the biological father did not have standing under the law because he had relinquished his parental rights to the non-Indian biological mother BEFORE the little girl was even born. The ICWA, from my reading of the decision, was designed to keep social workers and others from tearing apart Indian families and forcing adoptions of Indian children, which apparently used to happen a lot because gov’t officials would decide Indian parents were “unfit.” So ICWA was passed and it still stands. In some ways, the bio dad was really pushing his claim – the little girl was only 3/256, or 1.2%, Cherokee (according to Slate) – so at what point is it really a “Native American family?” (Personal aside: one of my ancestors 10 generations ago was a Leni Lenape (aka Delaware) Indian, making my mom 0.3% Indian, so would the ICWA apply to her too?)

      Back to the case: because the bio Dad gave up his parental rights and showed no interest in nor provided support for his daughter after she was born, SCOTUS said the ICWA didn’t apply to him, so they remanded the case back to the South Carolina state court system to be handled just like any other, non-Indian adoption/custody case. Which means the adoptive parents might get their little girl back, but because she’s now been with bio dad for a year, he might have a stronger claim to her. We shall see.

      Does that help, Lacy?

      • rys

        Tribal affiliation is not linked to percentage — tribal councils determine it and the percentage is irrelevant (which gets into matters of tribal sovereignty as well as cultural norms about racial/ethnic/tribal belonging). ICWA would apply to your mom, and possibly you, if she were registered with the Leni Lenape.

        • Alicia

          Interesting, thank you for explaining this.

        • MDBethann

          Thanks. I was always led to believe that we’re so distant from it (even though we have the genealogical proof) that we can’t claim Native American ancestry.

      • LACEY

        It really does, thanks. (And thanks, RYS, for the explanation about tribal affiliation.) I feel like this ruling is a good thing for the child, as long as it isn’t used to undermine legitimate ICWA claims in the future. So my understanding is that now the SC family courts will decide on custody, based not on ICWA but on the traditional “best interests of the child” arguments? Which will still be heartbreaking, no matter what, because her adoptive parents had her for 2 years, but her father has had her for 2 years, so “best interest” is going to be pretty wrenching, I think.

  • EBASS

    Like I said in a comment to Jen above, people really need to take the time to recognize what the “ruling” on Prop 8 has actually done. Roberts and Scalia only dismissed it (not actually a ruling), because it effectively prohibits citizens from appealing their state court’s decision on the constitutionality of gay marriage. This means that they upheld all of the other states’ marriage bans AND prohibited couples from effectively suing to overturn those bans (see Roberts’ statement on refusing to rule on cases where citizens appeal constitutionality issues to higher courts). This is actually a gigantic step in the wrong direction and no one is recognizing it. (also, I edited this from my previous comment for great accuracy)

    • anon

      No — it only says that an un-injured party doesn’t have standing. If you are challenging the state, because its rule hurts you, you are ok. If you are saying “the state won’t defend its rule, but I think its a good one so I’ll do it for them” — no standing.

      It does leave all other laws in place — that’s true.

      • art

        right, and though it leaves other laws in place, it does not “uphold” them, because they were not being challenged. though the Court *could* have opted to invalidate them on constitutional grounds and didn’t, it did not say anything specific about their constitutionality. so they could be challenged in later cases.

      • meg

        That’s right. I’m actually really disappointed in the Prop 8 decision, way more than I thought it would be. But they were arguably right on standing. The people that didn’t have standing were the non-state-govt entities that wanted to defend the Prop 8 gay marriage ban. It wasn’t people that were hurt by the ban suing to overturn it. They, of course, have standing.

    • David

      David here (yes, THAT David) weighing in to, hopefully, explain the Prop 8 decision.

      The Prop 8 decision is based on a relatively technical (albeit important) issue of federal court jurisdiction – standing. To just give you an idea of HOW technical it is, you should all look at who the majority and dissenting justices were (C for conservative, L for liberal). Majority: Chief Justice Roberts (C), Scalia (Really C), Ginsburg (Really L), Kagan (Really L) and Breyer (L). Dissenting: Kennedy (C), Alito (C), Thomas (comically C) and Sotomayor (L).

      The upshot of the decision is that it will have no affect on the ability of LGBT individuals or couples to challenge state or federal laws which violate due process or equal protection. The reason is the decision says nothing about a purported plaintiffs standing to challenge a law in federal district (trial) court. It remains that to challenge a law (in most situations), a plaintiff only needs to demonstrate that she has actually been injured or there is a high likelihood of injury (this is the non-technical definition). Additionally, if that individual LOSES in federal district court, she still has the ability to appeal that decision to a federal Court of Appeals and/or the Supreme Court.

      The Prop 8 decision is based on a rarely asserted issue of standing – the standing of a DEFENDANT to APPEAL a decision.

      In the Prop 8 case, essentially the State of California (through its elected officials) was the official “defendant” in federal trial court. The State, however, refused to defend Prop 8. The proponents of Prop 8 successfully “stepped in the shoes” of the State by successfully applying to be “intervenors” in the district court suit. Intervenors are interested third-parties who have some skin in the game (again, a non-technical definition) who apply to a trial court to be part of a suit and present arguments.

      When the plaintiffs in the Prop 8 case won, the losing party, the State of California (not the intervenors, who were not a “party” to the action), chose NOT to appeal. This decision meant that the State conceded that the District Court decision striking down Prop 8 would stand. The intervenors (the proponents of the measure) DID appeal though to the 9th Circuit Court of Appeals.

      Before the 9th Circuit looked at the merits of the appeal, it had to decide whether the intervenor proponents had “standing” to appeal the decision. In other words, the 9th Circuit had to decide if the intervenor proponents were “injured” by the District Court striking down Prop 8. To do this, the 9th Circuit formally asked the California Supreme Court what it thought, and the California Supreme Court responded that for the purposes of CALIFORNIA law, the intervenors had standing to appeal. The 9th Circuit then said what’s good for California is good for us, and went ahead and decided the case (upholding the striking down of Prop 8 on narrower grounds than the District Court).

      So now the Supreme Court decision: the Court held that it doesn’t matter what California thinks in terms of standing to appeal, for purposes of federal jurisdiction, the only party in this case that had standing to appeal the District Court decision was the State of California (against through its elected officials) because only the State was “injured” by the Court invalidating a provision of the State constitution.

      So because the intervenor proponents did not have standing to appeal (even though they were granted the ability to defend Prop 8 in the district court), the 9th Circuit did not have the jurisdiction to issue a holding and the Supreme Court has no jurisdiction to review that holding. The effect is the same as if there had never been intervenors and the State decided not to appeal the decision striking down Prop 8 (which it, in fact, did). The District Court decision stands and Prop 8 is unconstitutional.

      AN IMPORTANT NOTE: All this procedural rigamarole means that Prop 8 is no more in California and the prior state of California law (the California Supreme Court decision allowing gay marriage) stands. But even though the district court decided that it is unconstitutional under any circumstance for California, or any state, to ban gay marriage, that decision has very little effect on other federal courts in other states (in other words, very little “precedential” effect). This is for two reasons: (1) a district trial court decision can be “persuasive” for other federal courts, but has little value and other federal courts are allowed to reach their own decision and (2) the decision may be ultimately “unpublished,” meaning it can’t be cited by other courts.

      • meg

        Swoon.

      • art

        awesome, thank you :)

      • Kats

        And one follow-up: the hidden take-away from both of these cases is that they arguably give substantial cover for future executive branch decisions not to support legislation with which they don’t agree. In other words, if you read the Prop 8 (Perry) decision to mean that a third party cannot act to enforce a law that the state governor/attorney general has decided should not be supported, than states with split governments (Dem legislature and GOP executives or vice versa) have more ability simply to walk away from those laws. The same reasoning may apply to the federal government, depending on how you parse the the dissents in the DOMA case to count the votes.

        What does that all mean? In short, should the GOP win in 2016, I would expect some efforts for them to declare they will not support the Affordable Care Act if challenged, and will require some very thoughtful trial strategy to try to get a court to review that decision.

      • http://www.3upadventures.com Beth

        Meg, you have a winner.

    • http://prettypicturesbydanielle.tumblr.com/ Danielle

      Here is an FAQ from legal orgs about what the Prop 8 ruling means for same-sex couples in California: http://www.lambdalegal.org/publications/california-marriage-faq

  • Carolyn

    I told my Canadian colleagues of the news. They responded, ever calm, ever polite, “Congratulations to your country.”

    • Lily

      This was exactly the response in my office, haha!

    • http://cuvikingadventures.blogspot.com/ Jenny- Adventures Along the Way

      My Quebec colleague responded by saying she was surprised by how “behind-the-times” France and the US are/were with marriage law…and she just couldn’t understand how anyone could oppose equal rights regarding marriage.

  • http://thedilettantista.com The Dilettantista

    Haven’t had a chance to read through the thread, but if you are wondering how DOMA’s overturning impacts you if, say, you got married in New York but live in North Carolina:

    http://www.acslaw.org/acsblog/same-sex-marriage-and-states-like-mine

    A really well written and clear article. I was, of course, super pleased re: DOMA Death but my mind went straight to the legal implications of the Prop 8 decision. These are big steps in the right direction, but know what your status is if you live in a backwards state (like NC. I can say it is backwards because I live here).

  • http://dungeons-and-flagons.com/ Heather L

    While I’m glad DOMA was rejected, I feel hesitant celebrating much. As is, the ruling only applies to a small handful of states, and with the other bullshit the SCOTUS has been ruling, I feel it’s just not enough.

    • meg

      I’m with you Heather. And thanks. I was starting to feel like a bad person for being so happy about DOMA and then so so angry that we still don’t have a broad ruling. Yes, if you can afford to travel and get hitched in another state that has gay marriage, you (in theory, we’re pretty sure) will now have federal benifits. But if you can’t afford to do that, you get nothing. That makes me boilingly angry.

      • Tess

        I feel hesitant too. I of course want to celebrate the victories as they come, but this has just been such a mixed week from SCOTUS. First, the Voting Rights Act ruling is devastating. Second, striking down DOMA is amazeballs but a) doesn’t help people in states where gay marriage is not legal; and b) Kennedy’s rationales for striking it down are so murky and poorly articulated (oh, Kennedy) that the decision will be of little help going forward.

        Still, I believe in celebrating victories when they come so I think today is for relishing all the joy in my Facebook feed and hugging my friends and maybe tomorrow or the next days are for thinking about the next steps.

      • anon

        Lots of Federal rights use the state of domicile, not the state of celebration, as the test for whether a person is married. So you have “Federal Rights” in that the Federal Gov’t isn’t prohibited from recognizing your marriage (yay!) but in terms of specific benefits, things may still be spotty.

    • http://pinterest.com/katerees711 kate

      I think it’s a good thing that no one can point to DOMA any longer as a valid reason for not pursuing marriage equality. We need to take the momentum from this ruling and our celebration and move marriage rights forward in the many, too many, states that aren’t even effected by DOMA.

      Equality Michigan is working to have it include on the 2016 ballot.

      http://youpower.democracyforamerica.com/petitions/i-support-civil-marriage-equality-in-michigan

      On Monday state representatives introduced a legislative package to legalize marriage equality. I’m in the process of contacting my representative in support of this.

  • Amber

    Yay! Super excited, yet a little disappointed that there wasn’t a broad ruling to knock down all the state marriage bans–not that I expected that to happen, but a girl can dream, right? ;) So who wants to figure out my taxes for next year? I’m hoping to find a nice flowchart before next tax season on what this will mean for all of us. Especially considering that I recently moved from Maine (yay gay marriage!) to Mississippi (boo) and will be filing in both states, and my partner and I are getting married in NY this summer. I have a feeling it’s going to be all kinds of complicated.

    But yay–every step forward counts, even if there is still work to be done! I might have just put a bottle of champagne in my fridge to chill for later today…So happy!

  • NTB

    All I can say is: HELLS TO THE YEAH. !!!

  • Daisy6564

    As a Rhode Islander I was contemplating getting married in MA to show my support for marriage equality. I was so proud in May when my home state legalized gay marriage. Now I am happy that everyone will at least get federal rights for their legal marriages. Come get married in RI, it’s beautiful!

    • Daisy6564

      Oh, and I totally agree that this will be one of those Civil Rights issues that my kids look back on and wonder how the country ever could have been so bigoted, like I do with school segregation. Amen to that!

  • Benny

    Joy. Joy joy joy. That’s all I’ve got.

  • Ani quote

    I love my country
    By which I mean
    I am indebted joyfully
    To all the people throughout its history
    Who have fought the government to make right
    Where so many cunning sons and daughters
    Our foremothers and forefathers
    Came singing through slaughter
    Came through hell and high water
    So that we could stand here
    And behold breathlessly the sight
    How a raging river of tears
    Cut a grand canyon of light

    — Ani DiFranco, Grand Canyon

    • Elisabeth

      You quoted Ani and I am crying AGAIN!

  • Tess

    Can I also add a thank you to APW for covering equal rights? I know that APW is a different animal in a million ways, but I check a number of wedding blogs daily (god help me, I know, but it’s a habit you sometimes fall into when in the thick of wedding planning) and not a one had uttered a peep about DOMA all morning. Isn’t this the most important thing about weddings today???

    • A Single Sarah for certain values of single

      Really? I don’t even know what other wedding blogs are and sure don’t follow them. But agree with you that Supreme Court rulings are the most important thing about weddings today. And maybe this year. (No offense to anyone wed this year.)

  • Liz

    I wept at my desk all morning, and will be running down to join the Stonewall rally at 5:30. Edie Windsor and Robbie Kaplan are speaking at Pride Shabbat at my synagogue on Friday. The Pride parade – which BLEW UP after NY marriage passed two years ago – is on Sunday. This is a beautiful, beautiful week, and I am going to put some hella waterproof mascara to the test.

  • http://www.mylifeasherbst.wordpress.com AutumnE

    This is one of the few moments where I wish I was in the states.
    It would be great to be celebrating with my friends there.
    I was never allowed to legally marry my ex-wife and I still wonder how much of a difference that made in our marriage.
    I am over joyed that DOMA is dead. I look ahead to the fights we still have for total equality in the US, but feel good knowing this one is mostly finished.
    Thanks for APW for celebrating this. It was so nice to have a community to celebrate with today.
    So nice in fact, I decided to start soliciting posts on my bog about it. The first one went up a few minutes ago, and well it just feels good. Here is the link in case anyone is interested http://sophiaspockets.wordpress.com/2013/06/26/doomsday-for-doma/

  • Meghan

    Just gotta chime in: Yeaaaah!!! So happy for the LGBT community today. :)

  • http://www.3upadventures.com Beth

    Like many of you, I know this decision isn’t everything we could have hoped for (marriage equality in all 50 states). BUT…there was always this fear in the pit of my stomach that they would do something horrible to set the cause backwards. (Like uphold both laws or something.)

    Right now, I’m going to let myself celebrate. I got out of bed this morning, ran out to my car (because I’m internetless and apparently have no radio in the house) to sit and listen to NPR and wait wait … wait for them to report on SCOTUS this morning. When they, very simply, announced that DOMA had been struck down, I screamed, then started sobbing. (In the process, I terrified my dog. Good grief.)

    There’s so so much work to be done yet but it’s happening. Baby steps in the right direction.

  • Ari

    There’s still so much to do, but I’m so happy about these two decisions that I could dance. Have danced. Am dancing. My kids and I have been high-fiving each other all day.