In the DOMA ruling, the Supreme Court gave a clue to how the legal battle around gay marriage might play out in the future, said Ben Bishin, an associate professor of political science at the University of California – Riverside who’s researched gay rights.
Bishin said the DOMA ruling invoked the concept of liberty protected by the Fifth Amendment to say married gay couples should have the same protections as straight couples. The next question is what that means when not all states allow gay marriages.
“Once the court recognized that marriage speaks to fundamental questions of liberty, how can you say that you can abridge some people’s liberty in some states and not others?” Bishin said.
On California’s Proposition 8, the Supreme Court rejected the case on legal standing, meaning gay marriage will likely return to California. The court did not make a broad constitutional ruling on same-sex marriage like some had hoped.
Bishin said Proposition 8 opponents showed convincingly in court that gay marriage leads to no societal harms, and since that’s what social research widely shows, states will have a hard time making a legal argument that they have a strong interest in keeping marriage between a man and a woman.
So the next step, Bishin said, is a challenge to the setup that now exists giving gay families equal rights in some, but not all, states.
“I really think that’s where the debate is going to go over time,” he said.