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4. Kennedy Provides More Ammunition to Fight State Gay Marriage Bans
The Supreme Court ruling struck down only the part of the Defense of Marriage Act that impacts federal recognition of same-sex marriage. It had no direct impact on gay marriage recognition in states where it is banned, and the part of the act that permits states to refuse to recognize gay marriages performed in other states was not addressed.
But the language Justice Anthony Kennedy used in the majority decision of United States v. Windsor is being used to try to challenge other marriage bans. The Associated Press notes:
In the June 26 decision in U.S. v. Windsor, Kennedy said the provision denying federal benefits to legally married same-sex couples relegates those marriages to second-class status, and "it humiliates tens of thousands of children now being raised by same-sex couples."
He framed his argument with reference to states' "historic and essential authority to define the marital relation."
But it doesn't take too much creativity to reframe his opinion to challenge state bans on same-sex marriage, said Jon Davidson, legal director of the gay rights group Lambda Legal.
"It's stigmatizing and it's harmful to people and particularly harmful to children when their parents' relationship is treated as inferior by the government. Those points are points we will be making in all of our marriage cases," Davidson said.
Davidson's group is relying on the invalidation of the Defense of Marriage Act provision in a state lawsuit to force New Jersey to allow same-sex couples to wed. In that case, the new argument is that the New Jersey Constitution does not allow the state to essentially keep same-sex couples from receiving federal benefits by prohibiting them from marrying.
Kennedy’s was the swing vote everybody was watching for.
The other justices voted pretty much exactly as predicted even
before oral arguments were presented.
His language in the majority opinion gave a lot of ammo for
calling it a precedent that the state does not have a legitimate
reason for denying marriage recognition for same-sex couple. And so
his words are pushing the state battles