Attorney Brian Rice won't soon forget June 26. First of all, it's his anniversary. Rice and his partner were married in 2004, just after Massachusetts became the first state to legalize same-sex marriage.
Fast forward to 2013. On June 26, the U.S. Supreme Court struck down key provisions of the Defense of Marriage Act, which defines marriage as between one man and one woman and denies federal benefits — including tax breaks — to same-sex partners.
Rice had more than a small connection with the Supreme Court case, having helped to author an amicus brief that the Connecticut Bar Association had filed that challenged the constitutionality of DOMA. "It's pretty exciting to have the DOMA decision come down on your wedding anniversary," said Rice, a former McCarter & English construction lawyer who just completed a term as CBA secretary.
"It's a reminder of how far we've come since 2004," said Rice, who now works in New York. "It seems like a long time, but the country has made tremendous progress in the past 10 years, and that is clear with this decision."
Also energized by the DOMA decision was Barry Hawkins, who just wrapped up his term as CBA president. Last year, Hawkins led the charge to get the CBA to join the state attorney general and others in filing amicus briefs. He ran into significant opposition, as some CBA members thought the organization should steer clear of divisive issues.
But the amicus brief was filed in U.S. v. Windsor, the case that eventually went to the Supreme Court.
Edith Windsor, of New York, had filed the federal challenge after the death of her spouse in 2008. The Internal Revenue Service had denied Windsor the use of a spousal estate tax exemption on the grounds that DOMA did not recognize same-sex marriages for the purpose of federal benefits. Windsor received a federal estate tax bill of nearly $400,000. A New York federal district court ruled for Windsor on summary judgment and the U.S. Court of Appeals for the Second Circuit affirmed last summer.
On June 26, after the Supreme Court had ruled, Hawkins said he received thank you emails from lawyers who felt it was important that the CBA had taken a stand. "We, the CBA, were clearly part of the process and we hope the briefs we supplied were helpful for the justices in making their decision," Hawkins said.
"I said at the time, and I continue to believe, that this is the civil rights case of our generation," Hawkins said. "It's important to point out that our decision to file the amicus briefs was in keeping with the CBA's mission of upholding the laws in the state of Connecticut.
"Because same sex-marriage is legal in Connecticut, legally married same sex couples from Connecticut were being denied federal benefits available to other couples," Hawkins said. "We're glad to have been part of the challenge."
Justice Anthony Kennedy, writing for a 5-4 majority, said the 1996 law, which defined marriage for federal purposes as between a man and a woman, was a violation of constitutional principles of due process and equal protection of the laws.
"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways," Kennedy wrote. "By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government health care benefits they would otherwise receive."
Kennedy wrote that DOMA instructs federal officials, "and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."
The court, separately, let stand a lower court ruling that struck down California's Proposition 8, which banned gay marriages. The court did not reach the merits of the case. Instead, it declined to find standing for proponents of the ballot initiative, who stepped in to defend the constitutionality of the measure when the state itself declined to do so.
The ruling likely clears the way for same-sex marriage in California. Whether the DOMA ruling clears the way for same-sex marriage in the rest of the states is a matter of opinion. The majority decision was silent on whether current state bans on gay marriage are permissible under the U.S. Constitution.
But in his dissent, Justice Antonin Scalia said such a conclusion is "inevitable" given the Supreme Court's ruling. He blasted his colleagues for striking down "democratically adopted legislation."
"By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition," Scalia wrote.
However, in a separate dissent, Chief Justice Chief John Roberts Jr. went out of his way to signal that the majority ruling could not be used to keep states from defining marriage as between a man and a woman. "The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their 'historic and essential authority to define the marital relation,' may continue to utilize the traditional definition of marriage," Roberts wrote.
The case was closely watched in Connecticut, which had been home to another DOMA challenge. Last July, U.S. District Judge Vanessa Bryant ruled that the Section 3 of DOMA, the part that specifically prohibits the federal government from recognizing same-sex marriages, violates equal protection guarantees. The lawsuit, Pedersen et al v. Office of Personnel Management et al, was brought by six couples and one widower in Connecticut, New Hampshire and Vermont who were denied federal benefits because they were legally married to a spouse of the same sex.
Last week, Connecticut Governor Dannel Malloy, a lawyer, praised the Supreme Court ruling. "Having two different sets of laws for people based solely on their gender, race, religion, sexual orientation, or gender identity is wrong, and that's exactly what the Supreme Court recognized today," Malloy said in a prepared statement.
But Malloy and sounded a cautionary note. Even though same-sex partners in Connecticut can now marry and enjoy federal benefits, they don't have all the same rights as opposite couples. Currently, just 12 states and the District of Columbia recognize same-sex marriages.
"There is a part of DOMA that wasn't challenged, and that is the ability of a state to ignore a same-sex marriage performed in another state," said Ken Bartschi, of Hartford's Horton, Shields & Knox, who was a member of the plaintiffs' legal team in the Kerrigan case. "So the question becomes, what happens when a couple goes to Massachusetts or Connecticut and then goes back to Oklahoma, which says we don't recognize your marriage?"
Bartschi continued: "We've got a patchwork of state [laws] on this," he said. "There's a lot of work to do to get the rest of the country where the New England states and some of the other states are. This is a very important first step."
Ben Klein, of the Boston-based Gay and Lesbian Advocates and Defenders, argued the Kerrigan case before the state Supreme Court. He called June 26 a "thrilling day that has taken us so much further toward equality and dignity for same-sex couples in the nation."
Klein said the Kerrigan ruling, issued in October 2008, was a significant milestone in the battle for same-sex marriage rights. He noted that Connecticut same-sex couples were allowed to begin marrying just weeks after Proposition 8 passed in California, an event that devastated same-sex marriage proponents.
"I think one of the things that it's important for folks to remember about today's historic event is the historic role of the Connecticut Supreme Court in bringing us to this day," Klein said. "Not only was the court's decision historic because of its role in helping us understand that classifications based on sexual orientation are discriminatory … but it was also a beacon of hope for the marriage movement and for the country about what equality means."•