In
June 2013, in United States v. Windsor, a divided Supreme Court
struck down Section 3 of the federal Defense of Marriage Act, which until then
had defined “marriage” – for purposes of over a thousand federal laws and
programs – as a union between a man and a woman. The Court’s five-to-four
decision meant that same-sex couples who had been married in states where
same-sex unions were permitted would have the same right as opposite-sex
couples to, for example, file joint federal tax returns or receive each other’s
veterans’ benefits.
But on
the same day, the Court sidestepped a ruling on whether the Constitution
includes a right to marry someone of the same sex. Also by a vote
of five to four, it ruled instead that supporters of California’s ban on
same-sex marriage did not have a right to defend the ban on appeal when state
officials had chosen not to do so. Within days, same-sex marriages
resumed in California.
We all
assumed that the issue would be back again at the Court before too long, and
that expectation only increased as lower federal courts around the country
started to rely on the Court’s decision in Windsor to
strike down other states’ bans on same-sex marriage – in Utah, Virginia,
Oklahoma, Indiana, and Wisconsin. All told, by last Monday the
Court had before it seven different petitions asking the Court to weigh in on
whether states can prohibit same-sex marriage. With all of the parties on
both sides in all of the cases in agreement that the Supreme Court should take
up the question, review seemed inevitable.
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