Dan Smyth’s Future Kennedy: “States Must Recognize Same-Sex Marriage”

In June 2013, the U.S. Supreme Court ruled in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Among other effects, Section 3 prevented homosexual but not heterosexual couples from receiving some federal perks, such as tax breaks for having children.

Writing for the majority, Justice Anthony Kennedy said, “DOMA is unconstitutional as a deprivation of the liberty of the person [to enjoy federal perks] protected by the Fifth Amendment of the Constitution.” The Fifth Amendment reads in part as follows: “No person shall be…deprived of …liberty…without due process of law.”

Dan argued that, according to Justice Kennedy’s logic, state laws supporting traditional marriage appear doomed. It seems likely that a future Justice Kennedy could strike down such state laws, saying that “no state shall…deny to any person [homosexual]… the equal protection of…[marriage] laws.”

Dan asked readers what states should do if this situation occurs. Should states exit the marriage business and abolish state perks tied to marital status? Or, given the potential problems of privatizing marriage, will states just comply with future Kennedy’s decision?

Leave a Reply

Your email address will not be published. Required fields are marked *