The weddings were hastily arranged, with little time to notify friends and family before the happy couples rushed to city hall. There was no music nor flowers except for the corsages worn by the men and a bouquet carried by one of the women. But what the weddings lacked in trappings was more than made up for in high drama and heartfelt celebration.
Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo, both couples together for more than a decade, had to go to the U.S. Supreme Court to win the right to get married in their home state of California. Twice, the people of their state had voted that they could not wed: in 2000 and then again in 2008. They sued in federal court for the right to marry against strong doubts that they could win and fears that a loss would set their cause back.
The path to marriage was cleared by an ambiguous ruling from the Supreme Court on Wednesday [June 26] and a sudden decision by the Ninth U.S. Circuit Court of Appeals on Friday afternoon to lift the judicial order that had kept them in legal limbo despite two lower-court victories.
With all that, government officials enlisted to perform the ceremony California Attorney General Kamala Harris in San Francisco and Mayor Antonio Villaraigosa in Los Angeles naturally emphasized the long struggle as the couples prepared to exchange vows. “Today, their wait is finally over,” Harris said as TV cameras captured the scene with Perry and Stier before her. Some 90 minutes later, Villaraigosa echoed the point with Katami and Zarrillo beaming before him. “Today, your wait is finally over,” he said.
For all of the excitement of the week, however, the wait is not over for most of the gay and lesbian couples in the United States. Two Supreme Court decisions pushed the fight for marriage equality ahead by only a couple of steps and only by the narrowest of margins.
The court’s 5-4 decision in United States v. Windsor to strike down the federal Defense of Marriage Act took the federal government out of the business of discriminating against legally married same-sex couples. But it has no direct impact on the laws now in 36 states that bar gay and lesbian couples from being wed. In Hollingsworth v. Perry, a different 5-4 majority allowed California’s Proposition 8 to die at the hands of a now-retired, gay-partnered federal judge in San Francisco. But the justices made no comment on the plea by the lawyers for the two couples to constitutionalize marriage rights for gays and lesbians nationwide.
The court’s rhetoric in Windsor may set the stage for that to happen, but not in the immediate future. In his opinion for the majority, Justice Anthony M. Kennedy based the decision on federalism grounds. DOMA, he said, departed from the federal government’s traditional deference to the states on marriage law. New York or any other state, he reasoned, was free to decide on its own whether to grant legal recognition to same-sex couples.
In reaching that conclusion, Kennedy emphasized that a state’s decision to allow same-sex couples to marry “conferred upon them a dignity and status of immense import.” Kennedy rejected DOMA without even acknowledging the possible reasons for Congress to have enacted it. “[N]o legitimate purpose,” he wrote, “overcomes the purpose and effect to disparage and injure those whom the State, through its marriage laws, sought to protect in personhood and dignity.
For good measure, Kennedy forcefully rejected the argument from opponents that gay marriage is bad for the kids. To the contrary, Kennedy explained, barring gay or lesbian couples from getting married “humiliates the tens of thousands of children now being raised by same-sex couples” and makes it hard for them to understand “the integrity and closeness of their own family.”
The court’s four liberal justices Ginsburg, Breyer, Sotomayor, and Kagan joined Kennedy’s opinion with no further comment. In an appearance at the Aspen Institute on Saturday, however, Kagan hinted at the ruling’s potential impact by suggesting that in her view moral disapproval is no adequate basis for legislation at either the federal or state level.
The DOMA ruling leaves a host of issues for government and private lawyers to work out chiefly, how to define the federal rights of the gay and lesbian couples who live in or move to states that do not recognize their marriages. Federal law traditionally defines marriage based on where a couple lives, not where they came from. After having urged the court to strike down DOMA, the Obama administration must now work through a web of laws and regulations to make federal benefits a reality for legally married same-sex couples.
In California, gay marriage opponents tried to gum up the works by asking the Supreme Court on Saturday to override the Ninth Circuit’s action to allow same-sex weddings to proceed. Kennedy, supervising justice for the circuit, rejected the move on Sunday. The brief skirmish left California bursting with gay pride and scores of couples pledging to love and comfort, have and hold, honor and respect, for the rest of their lives. “I don’t know about you,” Villaraigosa said as he ended the ceremony for Paul and Jeff, “but I got goose bumps.”