The Supreme Court's Landmark Decision On Same-Sex Marriage

Transcript

RENEE MONTAGNE, HOST:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

DAVID GREENE, HOST:

And I'm David Greene. The United States Supreme Court issued two landmark decisions this morning in the gay marriage debate. In a 5 to 4 decision, the court has ruled that the Defense of Marriage Act is unconstitutional. This is the federal law that defined marriage as between one man and one woman. It doesn't stop there. The court also declined to rule on California's Proposition 8, and that ruling could clear the way for gay marriages in that state once again.

We have NPR's legal affairs correspondent Nina Totenberg on the line from the Supreme Court. Nina, good morning.

NINA TOTENBERG, BYLINE: Good morning.

GREENE: So could we start with DOMA, the Defense of Marriage Act? What did we hear from the majority?

TOTENBERG: Well, as you recall, the act does not recognize state laws that do recognize same-sex marriage. And the court said that DOMA, the Defense of Marriage Act, was enacted precisely to harm these couples who have state-recognized marriages. And as Justice Kennedy put it, writing for the majority, DOMA instructs all federal officials and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than marriages of others. And that, therefore, the law is unconstitutional, a violation of the equal protection clause, the liberty clauses of the Constitution. And it is struck down by a 5-4 vote. But the majority goes on to say this does not make a statement about those state laws that do not recognize same-sex marriages. It simply only deals with DOMA.

GREENE: OK. So let's sort out how far this law goes. I mean, they seem to be addressing specifically same-sex couples in states that recognize same-sex marriages. There are a lot of states that ban same-sex marriage. There are states that haven't addressed the issue. I mean, will this apply to all 50 states in some way?

TOTENBERG: Well, there are about 30 states that have banned same-sex marriages in their Constitution, and this has nothing to do with that. The court has not reached that question today.

GREENE: So we're dealing with - as we understand it right now, it is people who are married, same-sex couples in states where the states actually recognize their marriages.

TOTENBERG: Correct.

GREENE: OK. Good to sort out. Pretty strong dissents in this opinion.

TOTENBERG: Yes.

GREENE: What did those justices say?

TOTENBERG: Well, Justice Scalia wrote the principal dissent for himself and three other members of the court. And in his words - it was a typical flamboyant Scalia dissent. He said the court majority in the DOMA case assures us that they're not taking a position on same-sex marriage as a constitutional right. And then he says it takes real cheek for today's majority as it's going out the door to leave us with that confirming assurance. But he says the whole issue, DOMA, same-sex marriage, everything should be resolved by democratic debate and by state legislatures and not by the court.

GREENE: That essentially this issue doesn't belong in the court at all.

TOTENBERG: That's right.

GREENE: Let's move on, Nina, if we can, to Proposition 8. This is California's ban on same-sex marriage. The court essentially punted on this, making no ruling. How does the Supreme Court decide not to decide?

TOTENBERG: Well, what the court did, in an opinion written by Chief Justice Roberts; again it was a 5-4 decision. What the court said was we have no right to decide this case. This was a referendum passed in California, Prop 8, that banned same-sex marriage, and all the state officials, both Democrat and Republican, the executive officials have refused to enforce it and refused to appeal a lower court judgment striking down Prop 8. So that's the status quo, that the lower court had struck down Prop 8.

And if the state refuses to appeal and refuses to defend it, the group that sponsored Prop 8 has no business being in court. It doesn't have the right to appeal. It doesn't have any standing to be there. Therefore, the lower court decision striking down Prop 8 stands.

GREENE: OK. So Prop 8, lower court decision striking down Prop 8 stands. Does that mean that gay couples can now marry in California?

TOTENBERG: Well, it's probably accurate to say that it's going to be up to the state officials. But the state officials have already said that they're not going to enforce Prop 8. So no matter what the status of Prop 8 is, it's not going to be enforced.

GREENE: Nina, and we just have a few seconds left. You mentioned typical flamboyant dissent from Justice Scalia. You know this court well, something not so typical about the majority in this Prop 8 case.

TOTENBERG: Right. The majority was - the dissenters were justices Kennedy, Thomas, Alito and Sotomayor. They would have decided whether Prop 8 was constitutional or not. In the majority, joining Chief Justice Roberts, were justices Scalia, Ginsburg, Breyer and Kagan. In other words...

GREENE: Interesting.

TOTENBERG: ...mainly the two conservatives, three generally liberal justices...

GREENE: Yeah.

TOTENBERG: ...and then the flipside was on the dissenting side. But we still don't know whether...

GREENE: It doesn't always fall as you think it does.

TOTENBERG: Yes. And we don't know - and what we really don't know...

GREENE: Nina, sadly, we have to stop there.

TOTENBERG: ...is whether Prop 8 - whether the whole idea of same-sex marriage...

GREENE: We've got to stop...

TOTENBERG: ...is constitutional or not.

GREENE: NPR's Nina Totenberg, thanks. Transcript provided by NPR, Copyright NPR.