ANALYSIS: What the same sex decision means, and the way forward

06/27/2013 11:15 AM

06/27/2013 11:15 AM

Gay and lesbian groups in Kansas City reacted with excitement and optimism Wednesday after the U.S. Supreme Court indirectly validated same-sex marriage in California and declared part of the Defense of Marriage Act unconstitutional.

At the same time, those groups said their work is far from over. And it’s true.

That’s because the Court pointedly said it was not endorsing a fundamental constitutional right to marriage — in fact, given a clear opportunity to do so, the Court backed away, endorsing same-sex marriage in California only on a legal technicality.

The weird, liberal-meets-conservative majority in that case is your clue the votes weren’t there to validate marriage as a basic right. Justices inclined to grant those rights almost certainly backed away from pushing the issue, worried it would cost them Justice

Anthony Kennedy’s

deciding vote on DOMA. Kennedy is a states-rights guy.

So it’s unconstitutional for the

federal government to discriminate against legally married same-sex couples. But it’s fine for state

governments to do so.

Overturning that reality make take years. Given their current makeups, it’s quite clear legislatures in Kansas and Missouri won’t lift their bans on same-sex marriage anytime soon. Voters seem against the idea, too. And with the Supreme Court’s clear message, it’s highly unlikely judges will find a fundamental marriage right in the near future.

There is, however, another path forward.

Judges (and perhaps voters and lawmakers) might not endorse same-sex marriage as a right. But the U.S. Constitution’s

full faith and credit

clause requires states to honor laws and regulations in other states, and that clause may be the best hope for supporters of same-sex marriage.

Missouri and Kansas may never allow same-sex partners to marry. But they might be persuaded, either by the courts or voters, to recognize valid same-sex marriages from other states. (Congress, by the way, can enforce the full faith and credit clause with legislation.)

As several writers observed Wednesday, a valid Iowa driver’s license works fine in Missouri. Courts may soon decide a valid Iowa marriage license works the same way.

Requiring all states to recognize legal same-sex marriages would clear up some of the difficult administrative questions raised by Wednesday’s decision, while ducking the tougher task of forcing states to re-define marriage in their laws and constitutions.

Supporters of same-sex marriage may not see full equality for decades. Functional equality, though, may now be within their grasp.

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