Contrary to what you may have heard, the fight for marriage did not end on June 26 when the Supreme Court handed down its decisions in the Proposition 8 case, Hollingsworth v. Perry, and the Defense of Marriage Act case, United States v. Windsor. Neither of these cases invalidated any state law (such as a state constitutional amendment or state statute) protecting marriage. And neither case guaranteed the future invalidation of any state law protecting marriage. That's the way it can stay…or America can allow the decision to be manipulated into a nationwide redefinition of marriage if people stand idly by and do nothing.
By the letter, the two cases simply moved the focus from federal laws to state laws. Proponents of marriage must prepare themselves for the onslaught of litigation that is sure to come against state laws protecting marriage.
To grasp this point, understanding just what the Supreme Court actually decided is imperative. With respect to Perry, the court held that the supporters of Proposition 8 lacked "standing" to defend the initiative. Basically, the court said that the initiative's supporters were the wrong party to defend it.
This conclusion was quite technical and procedural. Thus, this decision never addressed the validity of Proposition 8 or any other state law protecting marriage. Of course, the decision has important practical ramifications for marriage in California. But these ramifications are, at most, limited to California. The Supreme Court's decision does not apply to any state law protecting marriage outside of California.
With respect to Windsor, things are more complicated. Windsor invalidated §3 of DOMA which defined marriage in all federal statutes as the union of one man and one woman. By invalidating §3, Windsor allows federal agencies to redefine marriage when conducting their federal business or to adopt a state's definition of marriage if that state has redefined marriage.
But the Supreme Court did not invalidate any state law protecting marriage as an opposite-sex union. Thus, in the 38 states that have defined marriage that way, the definitions still hold-an important fact that proponents of same-sex marriage want to ignore.
For example, after the Windsor decision, the Alabama Constitution still defines marriage in terms of one man and one woman. But the United States government must now treat two men married in Massachusetts as "married" for federal tax purposes because Massachusetts has redefined marriage in its laws. Thus, under Windsor, states can continue to protect or redefine marriage on a state by state basis.
But many opponents of marriage will seize on selected language in Windsor-rather than its actual result-to argue that this case set us on an inevitable course toward a constitutional, nationwide right to marriage for same-sex couples. Even Justice Scalia in his dissent in Windsor warned of this path.
But the high court's decision does not have to be read as necessitating a nationwide redefinition of marriage. Certainly nothing in the decision requires this result since it only affected federal law, not state law. And while the majority opinion in Windsor did mention notions of "equal protection" that apply to all laws, state and federal, the majority opinion also mentioned states' "historic and essential authority to define the marital relation…."
In other words, the Supreme Court invalidated DOMA using the argument that the federal government attempted to regulate in an area-family law-normally reserved for state control. But it was for this very reason that Chief Justice Roberts' dissent in Windsor emphasized that the court did "not have before it, and the logic of its opinion does not decide, the distinct question whether the States…may continue to utilize the traditional definition of marriage."
So the Windsor decision left open the question of whether marriage will be redefined nationwide. But we know from recent history that opponents of marriage will not be satisfied with such a limited result. Rather, they will undoubtedly file multiple lawsuits against state laws and constitutional amendments protecting marriage. One such lawsuit has already been filed in Arkansas. Marriage opponents will continue to ask courts to create a constitutional, nationwide right to marriage for members of the same sex, and to force that definition upon all states that choose to protect marriage.
But while these lawsuits are inevitable, their result is not.
Proponents of marriage must prepare themselves for a critical battle to decide whether the people can vote to protect marriage at the state level, or whether judges will be permitted to promulgate a Roe v. Wade-like decision enshrining a nationwide redefinition of marriage in the United States Constitution that is simply not there. The choice is ours.