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Gay marriage ruling already in use in other cases

Sunday - 7/7/2013, 9:20am  ET

FILE - In this March 6, 2013 file photo Supreme Court Justice Anthony Kennedy speaks in Sacramento, Calif. When the Supreme Court struck down part of an anti-gay marriage law, Kennedy took pains in his majority opinion to say the ruling applied only to legally married same-sex couples seeking benefits from the federal government. But judges and lawyers representing same-sex couples are already using Kennedy's language and reasoning in other cases about the right to marry. AP Photo/Rich Pedroncelli, File)

MARK SHERMAN
Associated Press

WASHINGTON (AP) -- When the Supreme Court struck down part of an anti-gay marriage law, Justice Anthony Kennedy took pains in his majority opinion to say the ruling applied only to legally married same-sex couples seeking benefits from the federal government.

But judges and lawyers representing same-sex couples are already using Kennedy's language and reasoning in other cases about the right to marry.

It's a predictable next step in a long-term, incremental legal strategy that is being used at both the state and federal levels, and in state legislatures and executive mansions as well as the courts, to build public and official acceptance of gay marriage. Much the same approach was used decades ago by civil rights lawyers fighting state-sanctioned discrimination; one decision becomes a steppingstone to the next.

In the fight over gay marriage, Kennedy's words also figured in an earlier example. He insisted in June 2003 that his opinion overturning state sodomy laws had nothing to do with governments' recognition of same-sex marriage. Five months later, language from his opinion showed up in the second paragraph of a state court ruling that made Massachusetts the first state to allow gay and lesbian couples to marry.

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.

Like the Massachusetts Supreme Judicial Court, other state court rulings in favor of gay marriage have relied on provisions of their state constitutions. That has not happened by accident. The litigation plan had been to pursue marriage in liberal states, based on state constitutions, and generally avoid federal courts where judges appointed by conservative Republican presidents had, until recently, been in the majority.

Federal courts in California are so far the only ones that have said that a state same-sex marriage ban violates the U.S. Constitution. The Supreme Court did not decide that issue one way or the other in its gay marriage rulings, and instead relied on a technical legal argument to resolve the California case and clear the way for same-sex marriage in the state, which resumed at the end of June.

Same-sex marriage is legal, or soon will be, in 13 states and the District of Columbia, representing about 30 percent of the U.S. population. The states are: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

But now federal challenges are popping up as well, in Nevada, Hawaii and Michigan, among other states.

The 9th U.S. Circuit Court of Appeals in San Francisco, which struck down the California prohibition on same-sex marriage, will consider the Hawaii and Nevada bans together, but that case is in its early stages.

In Michigan, a federal judge prominently cited the Windsor decision in allowing a challenge to the state's marriage ban and its prohibition on same-sex couples jointly adopting children to go forward.

U.S. District Judge Bernard Friedman, appointed by President Ronald Reagan, quoted Kennedy in concluding that "plaintiffs are entitled to their day in court and they shall have it."

A separate case in Michigan also "might cast a large shadow over a state law limiting marriage to opposite-sex couples," Georgetown University law professor Marty Lederman wrote on scotusblog.com.

In that dispute, public employees are challenging a Michigan law that cuts off domestic partner benefits for unmarried couples.

U.S. District Judge David Lawson, appointed by President Bill Clinton, partly relied on the recent Supreme Court case in saying, "It is hard to argue with a straight face that the primary purpose, indeed, perhaps the sole purpose, of the statute is other than to deny health benefits to the same-sex partners of public employees. But that can never be a legitimate governmental purpose." Lawson blocked the law for now, pending a trial.

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