Historic gay rights ruling blunted in Virginia

The landmark Supreme Court ruling on the Defense of Marriage Act does not overrule Virginia’s 2006 constitutional amendment against same-sex marriage in the state.

With a 5-4 vote, the Supreme Court on Wednesday invalidated a provision of DOMA that prevented gay couples from receiving a range of federal tax, health and retirement benefits that are generally available to married people.

Same-sex couples married in one of the dozen states that recognize such unions will be eligible for such benefits, but states still will make their own decisions on who is legally married.

“This ruling is historic and an important victory for the gay rights community, but we should keep it in perspective,” said Allison Larsen, assistant professor of law at the College of William and Mary.

The court does not say that there is a constitutional right for same-sex marriage, and Justice Anthony Kennedy in his opinion reaffirmed a state’s original authority on regulating marriage.

“This is not like Roe v. Wade, where the right to abortion is protected by the Constitution,” said Dick Howard, a professor of law at the University of Virginia.

“Kennedy clearly believes that marriage is a state prerogative, and he also does not say that a state law which has the same purpose as DOMA is unconstitutional,” he said.

This means that as long as Virginia defines marriage in the traditional sense as between man and woman, there is nothing in the ruling that changes the status quo in the commonwealth, Howard said.

“The court left the question of constitutionality of same-sex marriage for another day.”

In another 5-4 ruling Wednesday, the Supreme Court concluded that the supporters of California’s Proposition 8 ban on same-sex marriage lacked the legal standing to defend the measure. For same-sex couples in California, the real-world result could be they’re able to secure marriage licenses within about 25 days, once an appellate court takes a necessary procedural step.

After the DOMA ruling, W&M Rector Jeff Trammell urged Virginia’s universities to use the ruling to push for partner benefits for faculty and staff.

In a letter to presidents and rectors of public schools, Trammell said the lack of benefits for same-sex couples is causing Virginia universities to lose faculty members who take research grants to other states.

Gov. Bob McDonnell said the court’s ruling doesn’t change Virginia’s established policy, ratified by the state’s voters in the 2006 referendum.

“It properly leaves decisions on this important issue to the individual states. I’m sure this public policy and cultural conversation will continue in the years ahead.”

The governor added: “While there will always be disagreement on specific policy issues, and our faith traditions will often lead us to different positions, we all can agree that every American must be treated with dignity and respect under the law.”

Victoria Cobb, president of the Family Foundation of Virginia, called the ruling “a major defeat” for advocates of same-sex marriage.

But Cobb also said that the court’s decision is “a mixed bag” for both sides. “We’re certainly disappointed the court struck down DOMA, but the court has allowed the decision that millions of Americans, and Virginians, have already made on the definition of marriage to stand,” she said.

Nine states and the District of Columbia have laws allowing same-sex marriage. Since the justices began deliberating two cases in March, three more states have enacted such laws.

California, where gay marriage was briefly legal in 2008, would be the 13th state and would raise the share of the U.S. population in gay marriage states to 30 percent.

In Windsor v. U.S., the DOMA case, New York resident Edith “Edie” Windsor challenged the federal Defense of Marriage Act, alleging that the law violates equal protection guarantees in the Fifth Amendment’s due process clause as applied to same-sex couples legally married under the laws of their states.

Windsor was charged an estate tax bill much larger than other married couples because her deceased partner was a woman and the federal government did not recognize their marriage, even though their state, New York, did.

Wednesday’s ruling changed all that.

“It means that Edith Windsor qualified for the federal tax estate exemption for spouses,” Larsen said.

“New York recognized her marriage, and after today, federal law must do so as well.”

Consequently, thousands of same-sex couples — married in states that sanction such unions — are now guaranteed equal protection and benefits under federal law — even if they reside in Virginia, where their marriages are not recognized.

Claire Gastanaga, executive director of the American Civil Liberties Union of Virginia, said there are “more than 1,100 federal laws and programs where being married makes a difference — from tax laws, to eligibility for family medical leave, to Social Security survivor’s benefits, to access to health care for a spouse.”

James Parrish, executive director of Equality Virginia, an advocacy group for gay rights, said: “While we continue working to lift the ban on marriage here at home, we can celebrate the decision from the Supreme Court, affirming that all loving and committed couples deserve equal respect and treatment.”

Larsen said that even though the immediate effects of Windsor on same-sex couples in Virginia are limited, there may be long-term implications.

“There is language in the Windsor opinion that will be helpful to activists seeking marriage equality here in the future,” she said. Language that could possibly mean a broader ruling establishing marriage equality for same-sex couples “is not that far off in the future.”

Howard believes that the Windsor ruling might one day lead to a repeal of Virginia’s constitutional amendment.

“In future cases challenging state law, bans might be struck down based on the same equal protection clauses that we saw today,” he said. “But we are not there yet.”

McClatchy-Tribune and
The Associated Press contributed to this report.

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