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June 26, 2013 10:44 AM Court Avoids the Landmark Marriage Equality Decision

By Ed Kilgore

For supporters of marriage equality, there’s plenty to be happy about in the two Supreme Court decisions announced today. The 5-4 decision in U.S. v. Windsor strikes down the Defense of Marriage Act, and requires federal recognition of same-sex marriages formed in states allowing them. Another 5-4 decision in Hollingsworth v. Perry kills off California’s Proposition 8, bringing marriage equality to another—the largest—state.

But in both cases the Court managed to limit the precedential value of the decisions. Kennedy’s opinion in Windsor does not create any constitutional right to marriage, so the slow slog through the states to establish marriage equality is still required. And the majority (represented by the Chief Justice) in Hollingsworth based its opinion on standing issues alone, ruling that it will not interfere with California’s decision against defending Prop 8 in federal court.

I haven’t read the opinions in full, obviously, but there’s apparently language in Kennedy’s opinion in Windsor that seeks to set a new, tougher standard for judicial review of laws discriminating against LGBT folk. That could matter down the road. But all in all, today’s decisions reflect a deliberately narrow path on marriage equality that will, unfortunately, keep the issue in the legislatures and the courts (and on the ballot) for the foreseeable future.

UPDATE: As Josh Barro points out, Scalia’s angry dissent in Windsor predicts the Court majority will soon find an excuse to strike down all state restrictions on same-sex marriage. Let’s hope Scalia is right for once.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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