In a triumphant vindication for same-sex marriage, the Supreme Court on Wednesday ruled the federal Defense of Marriage Act unconstitutional and allowed a lower court's dismissal of California's ban of same-sex marriage.
Writing for the five-member majority, Justice Anthony Kennedy found that DOMA's "interference with the equal dignity of same-sex marraige" was in violation of the Fifth Amendment's guarantee of due process and equality under the laws.
The court's ruling reinvigorates that most essential American promise of equal protection, regardless of creed or color or sexual orientation.
Before protests of judicial activism ring out from opponents, it's important to recognize that Kennedy, a Reagan appointee, justified the ruling in the language of states' rights.
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Far from judicial overreach, Kennedy rebuked the government's overreaching attempt to "impose a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States."
The decision was limited to the provision that denied legally married gay couples federal benefits such as estate tax exemptions and Social Security payments. The section of DOMA permitting states to define marriage to exclude same-sex couples remains in effect.
The rulings do not legalize same-sex marriage in Kentucky, where the practice is prohibited by a state constitutional amendment.
Yet the ruling could renew the debate in a state where 51 percent of the population supports some legal recognition of same-sex couples, according to a recent poll.
The court's rulings actually lag behind increasing popular support, especially among the young, of equal rights for gay Americans. Though often fraught with partisan rancor, same-sex marriage is increasingly seen as a civil liberties issue inviting bipartisan support.
David Boies and Ted Olson, the attorneys who successfully challenged California's same-sex marriage ban, were on opposite sides of the Bush v. Gore court decision. Three Republican senators have come out in favor of same-sex marriage. Already the American Civil Liberties Union has forged a partnership with Steve Schmidt, a high-profile Republican operative, to strike down the remaining state laws banning same-sex marriage.
Clearly, the times are changing.
With the addition of California, 13 states will now permit marriage equality. Given the impressive momentum, state ballot initiatives and judicial challenges might soon increase that number.
These changes are not the results of an activist court — but of an activist public convinced that every American is born with certain inalienable rights: life, liberty and the pursuit of happiness.