New world for gay marriage: Rainbow flags flutter as top court rules federal government must recognise same-sex unions


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It was a new world for gays and lesbians in America as the top court in the land ruled today that those who get married in any of the 12 US states that allow it must be accorded full recognition and benefits by the federal government. It also opened the way for same-sex marriage to resume in California.

Loud cheers went up and rainbow flags fluttered beneath the steps of the Supreme Court in Washington as word came that the justices, in a 5-4 ruling, had struck down as unconstitutional the core provisions of the 1996 Defence of Marriage Act, DOMA, which had defined marriage as being between a man and a woman.  Some outside the court wept and chanted “THANK YOU” and “USA”.

The Court additionally let stand a lower court ruling in California that overturned Proposition 8, a disputed ballot measure passed by voters in 2008 to ban gay marriage.  The California Governor, Jerry Brown, instantly declared that that court ruling nullifying the ban applied statewide and instructed all counties to comply.  Experts predicted that gays would be allowed to marry again in the state in about one month.

Together, the two rulings will give important new momentum to the gay rights movement in the US which has seen a sea-change in public, cultural and political opinion in recent years in its favour, not least the declaration by President Barack Obama last year backing gay marriage for the first time.  Recent polls show over half of Americans now backing same-sex marriage, a near doubling of support in a decade.

That said, the ruling on Prop 8 was a mostly technical and limited one. The Justices stopped far short of sweeping away bans on all the other gay marriage bans that have been passed by over 30 US states in recent years – still a huge swathe of the country, most of it under Republican-led state legislatures or Republican governors. What some have called America’s last great civil rights battle is set to rage on. 

Yet by killing off DOMA the Supreme Court, divided though it was, has at least partially reset the national compass on the issue even if it hasn’t actually given its blessing to same-sex marriage. Gays whose unions were recognised only inside the borders of a state are now granted that respect by the country as a whole.

On a flight to Senegal aboard Air Force One, Mr Obama issued a statement applauding the evisceration of DOMA by the Court. “This was discrimination enshrined in law.  It treated loving, committed gay and lesbian couples as a separate and lesser class,” he said. “The Supreme Court has righted that wrong.”  He earlier expressed his approval with a Twitter posting that included the hash-tag, “#LoveIsLove”.  He also spoke via speaker phone from on board his plane with the Prop 8 plaintiffs to offer his congratulations.

Writing the majority DOMA ruling, Justice Anthony Kennedy, said that the law had imposed “a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states”.  He added: “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the state has sought to dignify.”

The practical consequences are far-reaching. The lifting of DOMA means that the roughly 1,100 federal tax, health and retirement benefits that are automatically granted to straight married couples must now be available to married gays also. It will also profoundly affect the immigration status of those non-American gay people who want to marry US citizens. The picture is not quite clear for couples who may travel to a state that allows gay marriage to tie the knot but then returns to continue living in a state that does not.

The case was originally bought by a New York resident, Edith Windsor, 83 who was received a tax bill of $363,000 when she inherited the goods of her partner of over four decades when she died. The two women had been married in Canada in 2007. No inheritance tax would have applied had she been in a same-sex marriage.  That money must now be refunded to her.

In a dissenting opinion that dripped with dismay, the conservative Justice Antonin Scalia called the majority decision “jaw-dropping” and one that smelled of “judicial supremacy”.