AP Photo / Manuel Balce Ceneta
Last summer, the Supreme Court handed down a landmark
decision
equalizing the treatment of all married couples under federal law. But
it opted not to address the more fundamental question in a
related case: whether gay and straight couples are entitled to equal protection on the state level, where marriage law is made.
That extraordinary dodge was seen by some experts as a disingenuous way of seeking a
middle ground in the rulings on the Defense of Marriage Act and California's ban on same-sex marriage. Dissenting Justice Antonin Scalia
fumed
that it amounted to "legalistic argle-bargle." And it appears he had a
point: a number of federal judges from Utah to Kentucky have concluded
that the Supreme Court's legal reasoning does not leave substantial room
for state-based discrimination against gay marriage.
Recently, federal judges in Utah and Oklahoma
overturned
the states' bans on gay marriage as unconstitutional, leading to chaos
as gay marriage was briefly legal there before the states appealed the
decisions and halted them. In Ohio, a federal judge
ordered the state to recognize same-sex marriages on death certificates. And on Wednesday, a federal judge in Kentucky
ordered the state to recognize out-of-state gay marriages.
"I think what's behind it all is that when you talk repeatedly in
your [Supreme Court] opinion about the dignity of gay people in
relationships, how do judges rule the other way?" Roberta Kaplan, the
attorney who argued against DOMA before the Supreme Court, told TPM.
"What possible reason could judges use for denying equality for gay
people?"
In fact, the judges "explicitly say they're doing this because of
Windsor," she said.
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