Why states that ban gay marriage are resting easy after Supreme Court rulings

The two gay marriage rulings from the US Supreme Court this week have prompted big sighs of relief coming from the 35 states with bans on same-sex marriage. Nothing in the high court's actions imperil their bans, say officials from those states, and in fact the justices affirmed the rights of states to define legal marriage how they see fit.

That may seem counterintuitive, given that gay rights supporters heralded the Supreme Court's moves, and that, as a result of its actions, gay marriages will soon resume in California, despite that state's voter-approved ban known as Proposition 8.

States with gay marriage bans can feel confident that those laws are not in legal jeopardy because the justices did not rule on the merits of same-sex marriage itself, only on the issue of federal benefits for those whom states deem to be married, says John Dinan, a political scientist and state constitutional expert at Wake Forest University in Winston-Salem, N.C. In the case involving the federal Defense of Marriage Act, the majority opinion, written by Justice Anthony Kennedy, describes the burden of DOMA on same-sex couples, but it does not venture into territory such as advising states with bans to change course or make adjustments.

“Legally, we’re in the same place today that we were at the beginning of the week. No real new ground has been broken in that direction,” Professor Dinan says. “Nothing came out of the two decisions that changed the legal terrain that would make those states vulnerable.”

Officials from such states asserted likewise. 

“The US Supreme Court ruled that states, not the federal government, retain the constitutional authority to define marriage. Michigan’s constitution stands, and the will of people to define marriage as between one man and one woman endures in the Great Lakes State,” said Michigan Attorney General Bill Schuette in a statement released soon after the ruling. Michigan’s voter-approved constitutional ban of same-sex marriage was established in 2004. 

US Rep. Tim Huelskamp (R) of Kansas told reporters that the “one good thing out of the decision was the court did not declare that there was a constitutional right for same-sex marriage” and that Kansas “will be able to maintain its marriage amendment” prohibiting gay marriage.

In a 5-to-4 decision issued Wednesday, the Supreme Court said Congress cannot treat same-sex married couples differently than opposite-sex married couples for purposes of qualifying for some 1,100 federal benefits, thereby overturning the guts of the federal Defense of Marriage Act (DOMA). As a result, same-sex couples residing in one of the 13 states where gay marriage is legal are soon to be entitled to all the federal benefits that heterosexual married couples receive.

In a separate ruling issued the same day, the high court dismissed the appeal from backers of California's Proposition 8, saying they did not have legal standing. That means a lower federal court ruling that California's ban is unconstitutional prevails in that state. 

Thirty-five states define marriage as between a man and a woman, according to the National Conference of State Legislatures. In 29, the gay-marriage ban is enshrined in a state's constitution, adopted by the state legislature after a popular vote. The other six bans are statutes – the result of action taken by state legislatures. There is little distinction between the two, says Dinan. The constitutional amendments may make it harder for a state court to step in and overturn them.

Some argue that the rulings may even embolden those in states with statutory bans to push for full-fledged constitutional amendments prohibiting gay marriage. In Indiana, for example, the General Assembly in 2011 approved such an amendment, but it waited for this week’s Supreme Court decisions to make a final vote. Once that vote takes place, the constitutional amendment will be put to voters next year. Indiana House Speaker Brian Bosma (R) told the Indianapolis Star this week that he expects the amendment to lock into place next year. “Hoosiers should have the right to speak on this issue,” he said.

Although the Proposition 8 ruling will result in the resumption of same-sex marriages in California, it should not be interpreted as laying groundwork for challenges to other states' bans, says Jack Tweedie of the National Conference of State Legislatures. All the court did was to refuse to hear an appeal by supporters of the ban.

“Even though the headlines said same-sex advocates won, they didn’t win anything legal that you can take to another case [in another state] and challenge,” Mr. Tweedie says.

His organization reports that 13 states plus the District of Columbia permit gay couples to marry.

None of this, however, means that states with gay-marriage bans won't see efforts to overturn them. Gay rights advocates are expected to try to persuade the electorate in some of those states to undo their bans, and will likely push for legislation and ballot measures that favor gay marriage in places where public support for their cause is growing. 

One state that veered first one way and then the other, in just a few years, is Maine. Voters banned same-sex marriage in 2009. Last November, they turned around and backed a referendum in support of gay marriage. 

Already, signs are of a fight ahead. On Wednesday, the American Civil Liberties Union hired Republican political strategist Steve Schmidt, who worked for President George W. Bush and was a senior adviser to Sen. John McCain's 2008 presidential campaign, to lead an effort to gain Republican support for gay marriage in the states. The ACLU also said it will spend nearly $10 million in gay marriage battleground states such as Illinois, Oregon, Hawaii, New Mexico, and others over the next four years.

“The trend of history is pretty clear: We’re going to see this fight go state by state,” says Daniel Urman, director of the doctorate in law and policy program at Northeastern University in Boston. “The lesson is democratic legitimacy, no matter what is decided. Each state is learning lessons from other states. To me, the judges play a role, but it’s still up to the people themselves.”