Gay Marriage: No Turning Back

It is not quite “the” ruling that will legalize marriage in the United States, but it might as well be. The majority of Supreme Court judges have made it quite clear where they stand.

Effectively, same-sex marriage will be allowed in 13 states, which represents one-third of the U.S. population. The movement is irreversible.

Surveys show a majority support gay marriage. President Obama is in favor of it, and now so is the Supreme Court, even if only by a small margin.

It is crazy how this issue has rapidly evolved. In 1996 when certain groups were demanding the right to marry for homosexuals, the U.S. Congress passed the Defense of Marriage Act, which re-affirmed that marriage was a union of a man and a woman. Full stop.

The law was adopted with no difficulty by an overwhelming majority and signed by President Bill Clinton. Back then gay marriage did not exist anywhere and was not even on the political radar.

Since then it has been legalized in some countries and a dozen American states.

The problem is that if the 1996 federal law does not forbid states from having their own definition of marriage, this prevents gay couples from benefiting from several federal laws applicable only to married couples.

This was the case for Edith Windsor, who had to pay $360,000 in taxes on inheritances from her partner. Inheritance between married couples, however, is not taxed — that is, as long as it is a valid marriage in the eyes of U.S. federal law.

Windsor contested the law because of its discriminatory nature and won the case. The decision was confirmed on appeal, and during the process, Obama announced that his government would no longer defend DOMA.

The matter should have been closed because the dispute between Windsor and the government was over.

But the Obama administration wanted a decision from the Supreme Court, invalidating its own law. Yesterday, it got this ruling when Justice Anthony Kennedy sat down to deliberate with the four so-called progressive judges of this deeply divided court.

The only objective of this law is to undermine the rights of same-sex couples, wrote Kennedy. How can we accept that people legally married in the state of New York — or married in Canada, like Windsor — cannot benefit from the same protections under the law?

Aside from its fiscal impact, this discrimination affects a thousand laws: It is illegal to be buried in a military cemetery, be considered a real “victim” in the same way as a “real” partner in certain criminal laws and get certain benefits of federal health insurance, etc.

DOMA says to same-sex couples and “all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriage of others,” which “humiliates tens of thousands of children now being raised by same-sex couples.”

The leader of the conservative wing of the Supreme Court, Anthony Scalia, was once again livid in the dissent he delivered yesterday. For him, the majority got carried away with a cause that should have never even been heard. It is a “jaw-dropping” political ruling, he said.

He is right about at least one thing. The five judges in the majority were “eager — hungry” to give their opinion on the subject.

In the Windsor and California affairs, the debate never really focused on the government’s right to ban same-sex marriage. Rather the question was whether the court should or should not hear the case, and the majority wanted to have a say on the federal law.

The judges launched into long analyses of the constitutional power of the court to hear a case — in order to find the means to discuss it — or, on the contrary, to avoid doing it.

In the second affair, in California the Supreme Court agreed to legalize gay marriage, concluding that it would not be part of the appeal — a purely technical ruling with colossal consequences nevertheless.

After a referendum in 2008, California outlawed gay marriage. One same-sex couple successfully contested the legality of the ban before a judge, but the state decided not to appeal. A pressure group — which was behind the referendum — wanted to appeal the case in the Supreme Court, but the majority, this time incongruous, concluded that there was no longer a case to be heard.

While the bench may have been hyperpoliticized, at least Justices Scalia and Roberts were consistent: They would not have listened to this case either, even if this refusal actually ended up encouraging same-sex marriage.

The social movement is irreversible, but the judicial debate will go on. Forty years after Roe v. Wade, the abortion debate still appears regularly before American courts.

It is an American specialty.