June 26, 2013

On Today’s Supreme Court Decisions

Today was a good, if not perfect, day for marriage equality. On the basis of equal protection, the U.S. Supreme Court struck down the Defense of Marriage Act (DOMA) provision preventing the federal government from recognizing same-sex marriages performed in states that allow them. In the California Proposition 8 case, the court ruled that the advocates of Proposition 8 who sought a reversal of the lower court finding that Proposition 8 was unconstitutional did not have standing to bring an appeal. (The state of California refused to defend the proposition.)

The immediate effect of these opinions is that legally married same-sex couples will enjoy the same federal benefits as mixed-sex couples. Also, same-sex marriage will be legal in California. Neither decision establishes a constitutional right to marry the person of one’s choice. Same-sex marriage is still impermissible in more states than not. Nevertheless, these decisions surely advance the cause of marriage equality.

What was not at issue in the DOMA case is the provision that states do not have to recognize same-sex marriages performed in other states.  This is surely a peculiar and anomalous situation that must not be allowed to stand. What happens, for example, if a lesbian couple married in, say, Massachusetts, while on vacation driving through Pennsylvania, get into an automobile accident and one spouse needs to make medical decisions for the other but does not have an explicit medical power of attorney? Or what if the same couple moves to Pennsylvania and eventually wants to divorce? Pennsylvania does not even consider them married, but Massachusetts and the federal government do. Who can or will grant a divorce?

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