A New Civil Right Almost: The Right to Marry


On Wednesday, June 26, 2013 the United States Supreme Court announced a pair of decisions which will eventually impact possibly as much as 10% of our population, including hundreds of thousands of children.  For now the decisions help same-sex couples who are already married, and also thousands of such couples in California who have been waiting to marry since the mid 2000’s when that right was first bestowed in 2004 and then later suspended, and ultimately taken away by Proposition 8.  But, the Supreme Court rulings stopped short of announcing same sex couples have the right to marry under our Constitution.

In the first of the two decisions, the Windsor vs. United States case, the United States Supreme Court ruled that Section 5 of the Defense of Marriage Act (DOMA) which passed while Bill Clinton was President was unconstitutional under the Equal Protection Clause of the 14th Amendment of our Constitution because it denied validly married couples the same rights under laws that heterosexual couples enjoyed.  Even in such matters of taxes, same-sex married couples were denied rights.  I have written about that before, in my blogs “Are Tax benefits in the Wind for Same Sex Couples?” and are Tax Benefits Possible for Divorcing Same Sex Couples?

I was especially pleased to see the court emphasize the impact that discriminatory laws have on children of same sex couples, something I have been writing and speaking about publicly since 2006. (See my blogs  “On Same Sex Marriage – It’s all About the Children Part 1”, Part 2, & Part 3.  Justice Kennedy stressed the harm done to families and the children of same sex couples when seen and treated as second class citizens, undeserving of rights enjoyed by all other families.

The basis of civil rights is that they must apply to all citizens, including and especially the minorities in our population.  When minorities are isolated and prevented from participating in society as equals, it weakens the moral and legal fabric of the whole country.  This is true even when we, ourselves, are not within that minority group.   Someday the discrimination may be turned back and we find ourselves in that minority.  The United States’ reputation is seriously harmed when we are seen across the globe as bigoted, short sighted and not living up to our own ideals of democracy that we urge upon other nations to emulate. Fourteen other nations have already legalized same sex marriage and many of these are countries deeply rooted in the Catholic faith. (See list of countries and US States where same sex marriage is legal in my next blog, “‘What Happens if you are a Same-Sex Married Couple in a State that does not Recognize your Marriage?

Practically speaking, now we all should benefit from the uniform application of our tax laws across the country – there may even be more taxes collected.  Similarly, our immigration laws will now have to be applied evenly.  If a same-sex married couple petition for a green card to allow the foreign born spouse to remain here permanently, that marriage will be handled just like any other marriage as the immigration authorities determine whether it is a genuine marriage. The decision will be made on the merits of the legal relationship and not on some capricious application of discriminatory laws. From now on couples can be more honest in their applications, fewer people will be here illegally, and permanent couples and their children will no longer be under the threat of one parent being deported.

As for California, people are celebrating all over the State.  Same-sex marriages resumed on Friday.  The right to marry your partner, whatever the sex, was already upheld in California by the California Supreme Court In Re Marriage Cases back in May, 2008.  However it was short lived because of the passing of Proposition 8 sponsored by conservative groups which sought to undo that right.  Subsequently the Federal courts in California held that same-sex marriages were, indeed valid, and Proposition 8 could not take away that right.  Upon appeal to the United States Supreme Court, it held the defenders of Prop 8 could not show they were harmed by the California laws that allow same sex marriage, and therefore they had “no standing” and thus no basis for appealing the ruling of the lower court.  The California elected officials, the Governor and the Attorney General had refused to take the case up on appeal as they believed same sex marriages to be legal under California law.  The effect of finding “no standing” was to allow the lower court decision to invalidate Proposition 8. Two days later the California Federal Court of Appeals lifted the stay on same-sex marriages, and the rights for same sex couples to marry were restored in California on June 28, 2013.

So, in a pair of very important civil rights decisions, many American citizens can now breathe a huge sigh of relief.  They can marry (and divorce)  in California, they can file Federal and state taxes together (where states recognize same sex marriage), visit each other in hospitals as spouses, become beneficiaries of health and other insurances.  It is said there are over 1,000 federal rights that same sex married couples will now be entitled to which they were denied previously.

For proponents of same sex marriage there is still much to do, as there is a patch work of laws across the country. Thirteen (13) states and the District of Columbia now recognize same-sex marriages and the rest do not, at least for now. I discuss the impact of that lack of uniform recognition of same-sex marriage across all states in the blog ‘What Happens if you are a Married Couple in a State that does not Recognize your Marriage?

What do you think?  Is the Right to Marry a Civil Right?  Please share your thoughts by leaving a comment below.

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