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How Supreme Court Marriage Equality Cases Could Affect States Without Same-Sex Marriage

In June the Supreme Court will announce its decision on the two marriage equality cases gay gay and lesbian couples: one about California’s Proposition 8 and the other about the Federal government’s DOMA.

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A Supreme Court in favor of gay marriage would not force all states to recognize the unions.

On the surface, these cases only affect people that live in states that allow or once allowed gay marriage. The first case involved Proposition 8, a ballot measure from 2008 that took away existing gay marriage rights in California  The second case involves the Defense of Marriage Act, or DOMA, which provides a federal definition of marriage as something between one woman and one man.

Most people in the country, however, live in states like Florida where gay marriage has never been legal. In fact, I’m an attorney in Florida and help same-sex couples with taxes, domestic partnerships, and adoptions, because the lack of marriage forces them to seek legal advice. Nine states prohibit gay marriage by statute, and another thirty states outlaw gay marriage in their constitutions.

So the question in the coming months for same-sex couples in most the country is whether the Supreme Court decisions in either of these cases could affect them.

The answer is probably not.

First, let’s look at the Proposition 8 case. This case involves questions of whether gay marriage is a fundamental right and whether denying marriage rights to same-sex couples violates guarantees of equal protection under the law.

The court could rule very broadly in this case and state that same-sex couples, in every state, have a constitutional right to marry. If that happens, then even in states like Florida that have no state-wide relationship recognition whatsoever, gay marriage would be legalized.

But that outcome probably isn’t going to happen. Instead, if the court rules in favor of the plaintiff’s in the Proposition 8 cases, then the ruling will likely be more narrow. The growing consensus among people that study how the Supreme Court rules is that the Court would state that (1) gay marriage must be legal in states that offer civil unions or (2) gay marriage must be legal in California. Both of these rulings would have no effect on states where gay marriage and civil unions are not an option.

The second case looks at DOMA. But more importantly, at issue in the case is only Section 3 of the statute, which provides the federal definition of spouse to only include someone of the opposite sex. Not at issue is Section 2, which is what lets a state not have to recognize a same-sex marriage from another state.

That means that, at best, the Court could rule the federal government must recognize gay marriages validly performed in a state. But because the legality of Section 2 of DOMA is not at issue before the Court, the Court cannot overturn Section 2 in this case. That means that states like Florida, even under the most favorable Court ruling, will not suddenly have to recognize gay marriages from other jurisdictions. That would be another lawsuit for another day.

Photo by Kevin Wong released under a Creative Commons license.

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Gideon Alper

Gideon Alper