Will The DOMA Decision Have a Ripple Effect?

Justice Anthony Kennedy

One thing is clear in the wake of yesterday's Supreme Court rulings on gay rights: there is still a great deal of work to be done in states like Virginia where legal recognition of gay relations is banned by the state constitution, where gays can be fired at will from their jobs and where we still face housing discrimination and all too often homophobic judges.  Thus, while yesterday gave rise to reasons to celebrate, the reality here in Virginia is that little has really changed.  LGBT Virginians remain second class - fourth class? - citizens.  Will the DOMA ruling help to set a movement for change in motion?  A piece in Politico looks at this question.  Here are excerpts:

The Supreme Court’s same-sex marriage decisions managed to do the impossible: get gay rights advocates and conservative Justice Antonin Scalia to agree.

Writing for the majority striking down the Defense of Marriage Act, Justice Anthony Kennedy was unsparing, declaring that the law’s “purpose and effect [is] to disparage and to injure” those in same-sex marriages, subjecting them to “a stigma” that “humiliates tens of thousands of children now being raised by same-sex couples.”

Kennedy insisted this kind of language wasn’t meant to support marriage equality litigation in future state-by-state fights, but the justice often seen as the intellectual leader of the court’s conservative wing wasn’t convinced.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia warned. 

Precisely, say the prospective challengers.  “Scalia’s dissent is absolutely on the money,” American Civil Liberties Union executive director Anthony Romero told POLITICO. “It’s going to open the floodgates for litigation applying equal protection standards to laws discriminating against LGBT people.”

“It gives me great joy” to find agreement with Scalia, gay rights activist and Clinton White House adviser Richard Socarides said. He said Kennedy’s withering condemnation of the motivations of same-sex marriage opponents and his lamentations about the impact of discrimination on the children of same-sex couples will be a major boon for the gay rights cause.  “I think the language is going to be extremely useful because it’s very powerful and it makes clear the court takes a very dim view of laws targeting gay people,” Socarides said.

However, Kennedy’s majority opinion in the DOMA case falls short of something both gay groups and the Obama Administration asked the court to do: explicitly declare that government classifications based on sexual orientation are subject to “heightened scrutiny” by the court.

Romero called the ruling “huge” and “a tipping point, but said the ACLU will be hedging its bets on the legal impact of the decision. The civil liberties groups is pressing on with litigation in some states but also mounting a significant legislative effort to legalize gay marriage in many of the 37 states where it is not legal, and in many cases, banned.

The ACLU has hired Republican strategist Steve Schmidt, a top adviser to Sen. John McCain’s 2008 campaign, to build GOP support in the states for legislation to make gay marriage legal. “There’s support for marriage equality among Republicans ranging from moderates to the Tea Party,” Romero said, offering a pitch that casts the issue as one of “limited government.”

Romero noted that the DOMA case the court decided Wednesday left intact a portion of the 1996 law that says states can’t be forced to recognize same-sex marriages performed in other states. He said that means marriage rights in every state remain critical even if same-sex couples have more and more places they can tie the knot.

In short, the battle continues, although there are many days I'd like to just leave Virginia and move to a place where the boyfriend and I could be fully equal.  Sadly, many gays don't have the luxury of being able to pick up and move.   Hence we remain in backward rat holes like Virginia.