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Gay marriage gains momentum with high court rulings

The U.S. Supreme Court's decision to strike down the Defense of Marriage Act on Wednesday marked a huge victory for gay rights supporters, and likely will cause other states to re-examine how they handle same-sex unions, according to local legal analysts.

In the day's other closely watched ruling, the high court cleared the way for gay marriage in California, letting stand an earlier trial court opinion that Proposition 8, California's voter-approved ban on gay marriage, is unconstitutional.

"Getting marriage back in California — so now this makes it 13 states with same-sex marriage — that will help with the momentum as far as what happens in other states," said Barbara Cox, California Western School of Law professor.

In a 5-4 vote, with Justice Anthony Kennedy writing the majority opinion, the Supreme Court concluded that DOMA, which denies same-sex married couples the same federal benefits it grants to heterosexual couples, violates the equal protection clause of the Constitution.

The decision means same-sex couples who are married in the 13 states that recognize gay marriage are now entitled to all the federal benefits and responsibilities that come with a traditional marriage.

Supporters of gay marriage celebrate after the U.S. Supreme Court overturned the Defense of Marriage Act and declined to rule on the California law Proposition 8 in Washington, D.C., on Wednesday. A divided U.S. Supreme Court gave a landmark victory to the gay-rights movement, striking down a federal law that denies benefits to same-sex married couples and clearing the way for weddings to resume in California. Photo: Joshua Roberts/Bloomberg News

Cox also said the decision now casts a pall over the domestic partnership laws used in certain states, like New Jersey.

"The states that thought they were providing equal rights to its citizens by providing civil unions are going to have to think about that," she said.

Cox said the only question now is whether couples who are legally married in one state will retain their federal benefits if they move to a state that doesn’t recognize gay marriage.

"(The opinion) did, at the very end, say it only applied to same-sex couples who are legally married," she said. "It seems like they're trying to limit it to those who are married in their home state."

Thomas Jefferson School of Law professor Julie Greenberg said Justice Ruth Bader Ginsburg properly summed up the feelings of the majority during oral arguments when she compared DOMA's treatment of gay couples to skim milk.

"To have two kinds of marriage means those (without federal benefits) are being treated as second-class citizens, and that's unconstitutional," Greenberg said.

The Proposition 8 case was surprising in that an unusual group of justices joined in the 5-4 majority, with conservative justices Antonin Scalia and John Roberts joining Ginsburg, Elena Kagan and Stephen Breyer.

Roberts, the chief justice who wrote the majority opinion, said the backers of Prop. 8 were not the proper party to appeal the trial court decision. The state, which has standing in the case, had earlier declined to appeal the ruling.

"The key to the Prop. 8 decision was the chief justice, and I think he wrote an opinion that Scalia could love," said Miranda McGowan, a professor at the University of San Diego School of Law. "The chief justice is really crafty. Like in the health care cases, he found a way to have his cake and eat it, too.

"I think it would have bothered him as a substantive matter to uphold Prop. 8. He has a gay friend, so it's a personal issue for him. At the same time, he didn’t really want to reach the merits. So he gets to write an opinion that really narrows the doctrine of standing. That's something conservatives like to do."

Some observers wonder how the Supreme Court's decision will affect gay marriage throughout the state of California.

Some speculate that U.S. District Court Judge Vaughn Walker's ruling that Prop 8 is unconstitutional only applies to the two couples in the case, while others suggest it only applies to the two counties in which those couples reside.

California Gov. Jerry Brown, however, sent a letter Wednesday, directing county clerks to issue marriage licenses to same-sex couples once the hold on gay marriage — put in place while the matter was before the Supreme Court — is lifted by the Ninth Circuit Court of Appeal.

Proponents of Prop. 8 have said previously that Walker doesn't have the authority to issue a statewide injunction, preventing the enforcement of Prop 8.

"I don't think their argument is strong on that, and clearly Gov. Brown thinks it should be a statewide ruling," said Cox of California Western.

"As a practical matter, it seems same-sex marriages should start to take place in California," USD's McGowan added.

The effect for employers throughout California is minimal, according to Danielle Moore, a labor & employment attorney for Fisher & Phillips.

"Most employment laws in California have already included domestic partners for years," she said.

The two segments in California who will see their benefits change, she said, include military spouses, who now will receive additional benefits under the Family and Medical Leave Act, and federal government employees with a pension.

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