June 27, 2013 at 1:25 pm EDT | by Peter Rosenstein
A giant step for equality

In looking toward the Supreme Court’s marriage decisions, Adam Liptak wrote in the New York Times, “Gay men and lesbians have yet to achieve formal legal equality. They are not protected against job discrimination in much of the nation, may not marry their same-sex partners in most of it and do not have their marriages recognized by the federal government in any of it.”

Walter Dellinger, former acting Solicitor General in the Clinton administration wrote in Slate, “it is hard to overstate the importance of the Supreme Court’s forthcoming decision in United States v. Windsor. At issue is the part of the Defense of Marriage Act that defines ‘spouse,’ and ‘marriage,’ for all federal purposes, to exclude same-sex couples. According to the solicitor general, there are 1,138 federal laws and programs affected by this definition. As a result of DOMA, same-sex couples legally married under their own state’s laws are nonetheless denied benefits otherwise afforded to married couples under federal employment laws, Social Security laws, tax laws, immigration laws and myriad other programs. It is a simple as this: As long as DOMA is in effect, no gay couple anywhere in this country is truly married. If a gay couple is deemed not to be married for more than 1,000 purposes governed by federal law, it’s hard to say that anything approaching marriage equality exists anywhere in the country, no matter how many states allow same-sex couples to marry.”

With its decision on DOMA, the Supreme Court made clear that some members of the LGBT community are for the first time truly married. By ruling 5-4 that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment, the court said that the federal government can’t discriminate against and deny federal benefits to couples that are legally married in a state.

The decision means that the 1,138 benefits, including those that Dellinger mentioned, will now have to be looked at by the Obama administration and they will have to determine how they are applicable for gay and lesbian married couples.

The Obama administration has known for a long time that this case could be decided in favor of overturning Section 3 of DOMA. It is hoped that the administration has been looking at these rights agency by agency and is prepared to make decisions on how the government will deal with them. The president must be prepared to sign any executive orders that are needed to move forward on granting those rights. We have seen that the president has not been willing to sign the executive order barring job bias in federal contracting but it has to be the expectation of the LGBT community that we will not be forced to wait too long for the decisions on all these issues.

Writing for the majority, Justice Kennedy said, “The Constitution’s guarantee of equality must at the very least mean that a bare congressional de­sire to harm a politically unpopular group cannot justify disparate treatment of that group.”

In the Proposition 8 case, the court denied standing and said the decision of the Ninth Circuit is vacated and remanded. Following the scenario in an amicus brief submitted by Dellinger, which was referenced by the justices during oral arguments, they limited that ruling to allowing gay marriage in California. They did not make a statement that gay marriage must be considered legal in all states. The result is that for the time being the LGBT community and our allies will have to continue fighting for our equal rights state by state. Writing for the majority, Chief Justice John Roberts said, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” So within 30 days, same-sex couples will again be able to marry in California.

Today we have taken a huge step forward for equality and we continue the fight for our full civil and human rights knowing that we will win because we are on the right side of history.

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