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Originally published June 26, 2013 at 9:49 PM | Page modified June 27, 2013 at 7:53 AM

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Victories for gay marriage, but not end of fight

Even as they celebrate, supporters of gay marriage anticipate a return trip to the Supreme Court in a few years, sensing that no other option but a broader court ruling will legalize same-sex unions in all 50 states.

McClatchy Washington Bureau and The Associated Press

Cases before the Supreme Court

PROPOSITION 8

The challenge was brought on behalf of two same-sex couples, Kris Perry and Sandy Stier, and Paul Katami and Jeffrey Zarrillo. Both couples were denied marriage licenses in California because of Proposition 8.

The case arose after the state Supreme Court ruled that same-sex couples had the right to marry. Voters subsequently changed the state’s constitution in 2008, through Proposition 8, to limit marriages to one man and one woman.

U.S. District Judge Vaughn Walker issued a 136-page opinion in August 2010 in which he concluded Proposition 8 violated the U.S. Constitution.

The 9th U.S. Circuit Court of Appeals upheld Walker’s decision, though for a very state-specific reason that essentially confined its reach to California.

State officials declined to defend the same-sex marriage ban. Instead, conservative individuals argued on its behalf. The California Supreme Court concluded, and the 9th Circuit Court of Appeals accepted the view, that the opponents were authorized to step in since the state had stepped out. The Supreme Court disagreed.

DEFENSE OF MARRIAGE ACT

The federal law defining marriage inserted the national government into what traditionally had been state territory.

The court case arose from a challenge filed by Edith Windsor, a computer programmer who married her longtime partner, Thea Clara Spyer, in 2007. They remained a couple until Spyer died in 2009. The Defense of Marriage Act prohibited Windsor from receiving a deduction afforded married couples. She had to pay $363,053 in estate taxes, and the Internal Revenue Service denied her refund request.

The Obama administration initially defended the act, as is customary for administrations, but it stopped in February 2011 after concluding that Section 3 violated the Constitution. In its place, House Republicans funded the defense of the statute through what’s called the Bipartisan Legal Advisory Group.

The Sacramento Bee

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WASHINGTON — The Supreme Court made history while it set up new challenges Wednesday with two victories for same-sex marriage.

In a pair of high-profile decisions, the divided court effectively undercut California’s Proposition 8, which bans same-sex marriage. Separately, the court struck down a key part of the federal Defense of Marriage Act, which denies same-sex married couples federal benefits.

Together, the rulings provide an emphatic, if incomplete, win for advocates of same-sex marriage.

Even as they celebrate a momentous legal victory, supporters of gay marriage already are anticipating a return trip to the Supreme Court in a few years, sensing that no other option but a broader court ruling will legalize same-sex unions in all 50 states.

Wednesday’s twin rulings will extend federal recognition to same-sex marriages in the states where they are legal, including Washington, and will add California — the most populous state — to the 12 others in that category plus D.C.

That will mean about 30 percent of Americans live in states recognizing same-sex marriage.

But the court’s rulings have no direct effect on the constitutional amendments in 29 states that limit marriage to heterosexual couples.

In a handful of politically moderate states such as Oregon, Nevada and Colorado those amendments could be overturned by ballot measures, but that’s considered highly unlikely in more conservative states.

The decisions address different issues, and neither declares a broad constitutional right to same-sex marriage that covers residents of all 50 states. But in each case, acting on the final day of the term that began last October, a slim 5-4 court majority endorsed a position that helps the same-sex marriage cause, as well as individual couples.

“We’re proud of you guys,” President Obama, on the way to Africa, said in a broadcast phone call from Air Force One to the two same-sex couples who had contested Proposition 8, “and we’re proud to have this in California.”

Among conservatives, there was deep dismay over the Supreme Court rulings, but little indication of any new strategies or initiatives.

House Speaker John Boehner, R-Ohio, said he was disappointed in the outcome of the federal marriage case and hoped states continue to define marriage as the union of a man and a woman.

Boehner, as speaker, had stepped in as the main defender of the law before the court after the Obama administration declined to defend it.

“We mourn for America’s future, but we are not without hope,” said Tim Wildmon, president of American Family Association, in a statement.

The U.S. Conference of Catholic Bishops, which staunchly opposes same-sex marriage, called upon Americans “to stand steadfastly together in promoting and defending the unique meaning of marriage: one man, one woman, for life.”

The Proposition 8 case involved a challenge to the 2008 California ballot measure that banned same-sex marriage. On Wednesday, the court concluded that supporters of the California ban lacked the legal standing to defend the measure.

For gay 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.

“As soon as they lift the stay, marriages are on. And wedding bells will ring,” California Attorney General Kamala Harris said at a news conference Wednesday.

In its ruling, the Supreme Court didn’t clarify the next steps, beyond Prop. 8 supporters’ standing.

Standing is the legal term for being eligible to file a lawsuit. To have standing, an individual must have a significant interest in the controversy and must either have suffered an injury or face an imminent threat of injury.

“It is not enough that the party invoking the power of the court have a keen interest in the issue,” Chief Justice John Roberts wrote, adding that “we have no authority to decide this case on the merits.”

The decision eliminates a 9th U.S. Circuit Court of Appeals ruling and leaves intact a trial judge’s order blocking Proposition 8 from taking effect.

Typically, it takes about 25 days for a Supreme Court ruling to filter down to the lower courts, though advocates hope it will happen sooner.

“We’re elated,” Berkeley, Calif., resident Kris Perry — one of the individuals who challenged Proposition 8 — said at a news conference. “Now our children will finally be in a family where their parents are married.”

The four dissenting justices — one liberal and three conservatives — argued that the Proposition 8 opponents should be heard in court. Intriguingly, Justice Anthony Kennedy, who wrote the separate decision striking down part of the Defense of Marriage Act (DOMA), was among them.

The Defense of Marriage Act case involved a challenge to the 1996 federal law that prohibits same-sex couples who had been married under state laws from obtaining myriad federal benefits.

A different majority from the one that ruled in the Proposition 8 case concluded that portions of the federal law violated the Constitution, as they undermine those states that have chosen to allow same-sex marriage.

“DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life,” Kennedy wrote. “It tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.”

Kennedy joined the court’s four liberal justices in the decision. The court’s four conservatives dissented.

“The Constitution does not forbid the government to enforce traditional moral and sexual norms,” Justice Antonin Scalia wrote in dissent.

Scalia further warned that the lack of a uniform definition of marriage would cause many complications; for instance, for same-sex couples who must figure out their tax-filing status when they move from one state to another.

In the wake of the ruling, Sen. Dianne Feinstein of California and other Democrats introduced legislation to eliminate the Defense of Marriage Act altogether.

The Government Accountability Office has identified more than 1,100 areas of federal law in which marriage matters, ranging from tax and welfare benefits to employment and immigration. Same-sex military couples, for instance, are denied housing, health insurance and disability benefits, and are ineligible for burial alongside their spouses in national cemeteries.

Lee Badgett, an economics professor at the University of Massachusetts, predicted the ruling on federal recognition would prompt thousands of gay couples to get married, now that there were additional financial incentives to do so.

The National Conference of State Legislatures said the situation was clear for married gay couples in the 13 states recognizing same-sex marriage: They will be eligible for all federal marriage benefits.

“Outside of these states, federal marriage benefits become more complicated, as many commonly thought-of federal benefits, such as jointly filing on federal income taxes, are tied to a married couple’s place of residence,” the conference said.

The Human Rights Campaign’s president, Chad Griffin, told supporters outside the Supreme Court building that the goal would be to legalize same-sex marriage nationwide within five years.

To sway the justices in such a time frame, activists plan a multipronged strategy.

In addition to possible ballot measures in a few states, they hope lawmakers will legalize same-sex marriage in states which now offer civil unions to gay couples, notably New Jersey, Illinois and Hawaii.

There also will be advocacy efforts in more conservative states, ranging from expansion of anti-discrimination laws to possible litigation on behalf of gay couples there who are denied state recognition even though they married legally in some other jurisdiction.

In Florida, where voters approved a ban on gay marriage with 62 percent support in 2008, the gay-rights group Equality Florida called on its supporters to “get engaged and fight” for recognition of same-sex marriage.

Increasingly, political swing states like Florida, as well as more solidly Republican states, could become gay-marriage battlegrounds.

One example of the forthcoming strategy: The American Civil Liberties Union announced Wednesday that it has hired Steve Schmidt, former communications director for the National Republican Congressional Committee and adviser to Sen. John McCain, R-Ariz., to build support among GOP state politicians for striking down gay-marriage bans.

“For a full civil-liberties victory, we need broad-based support from coast to coast,” the ACLU’s executive director, Anthony Romero, said.

Gay-rights activists immediately began lobbying the Obama administration and other federal officials to extend as many benefits as possible on the basis of where a gay couple’s wedding took place, not on the state in which they live.

“The Obama administration can make clear, through regulation, that the federal government will recognize those marriages and not participate in state-sponsored discrimination,” said Suzanne Goldberg, a professor at Columbia Law School.

Evan Wolfson of Freedom to Marry, one of the groups most active in building support for same-sex marriage, urged the administration to adopt a “clear and consistent” standard that would apply equally to all married gay couples, regardless of their state of residence.

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