Activists Say Gay Marriage Will Be Legal Across America in 5 Years

Today's Supreme Court rulings only legalize unions in California, but campaigners say they set the stage for fast changes nationwide.
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Edie Windsor, plaintiff in the Supreme Court's Defense of Marriage Act case, arrives at a news conference in New York. (Reuters)

This post has been updated with additional information.

Gay-marriage advocates were celebrating Wednesday's Supreme Court decisions not just because of what they mean today -- making gay marriage legal in California and federal benefits available to married gay couples -- but what they could mean tomorrow.

As Andrew Cohen explains, the Court didn't take a position on the merits of the arguments for and against California's Proposition 8. But at the same time, it struck down the Defense of Marriage Act on broad constitutional grounds. Advocates believe that gives them an opening to challenge marriage bans in the 31 states where they're currently on the books. If they're right and the bans start to fall, gay marriage could quickly be legal across the nation.

"The principles the court articulated today mean we are going to have marriage equality in all 50 states," said David Boies, one of the lawyers on the winning side of the Prop 8 case. In the DOMA case, he said, the court "held that there was no rational basis, no legitimate justification, for discrimination against gay and lesbian citizens; that that kind of discrimination seriously harms us; and that there is no justification other than malice and disapproval" for it. Boies spoke to reporters on a conference call organized by the American Foundation for Equal Rights.

That reasoning, Boies said, deprives states of any constitutionally acceptable reason to continue to discriminate against gay couples. The Prop 8 case provided further support, he noted. By denying the initiative proponents standing to bring their case, the Court "held that the proponents had not suffered any injury -- that no harm to them came from marriage equality."

There are currently five cases in federal court and three in state courts challenging state marriage laws on constitutional grounds. Activists believe if any of those makes it to the Supreme Court, the justices are bound to rule in their favor based on today's decisions.

Boies and other advocates said it's too soon to start talking about a legal strategy going forward, though they've been anticipating this result for some time. They have "looked at laws in other jurisdictions," Boies said, and while it's not yet clear how challenges would be formulated, the DOMA decision contains "powerful arguments to knock those down."

Chad Griffin, president of the Human Rights Campaign, set an ambitious goal for the gay-marriage movement. "Within five years, together, we will bring marriage equality to all 50 states."

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Molly Ball is a staff writer covering national politics at The Atlantic.

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