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Gay Marriage Decision Confers “Equal Citizenship,” BU Scholar Says

LAW’s Linda McClain applauds landmark ruling


Married gay couples in states allowing same-sex marriage will be entitled to all federal marital benefits, such as Social Security, following yesterday’s US Supreme Court decision striking down the federal gay marriage ban, says School of Law Professor Linda McClain.

The decision “is a significant step in solidifying the equal citizenship of gay men and lesbians,” says McClain, who specializes in family law and the nexus of gender and law. Her recent book, Ordered Liberty (Harvard University Press, 2013), discusses gay marriage.

The court also put off a decision on Proposition 8, California’s voter-passed ban on gay marriage. But activists hailed both rulings as a pivotal step forward for gay rights.

In the first case, Edith Windsor, a New York lesbian widow, challenged the 1996 federal Defense of Marriage Act (DOMA), which denied her designation as a surviving spouse and saddled her with $360,000 in taxes when she inherited her deceased spouse’s property. A heterosexual survivor would not have faced the tax bill.

The second case featured two California gay couples who challenged Prop 8. The court sent that case back to a lower court, ruling that the law’s supporters didn’t have standing to bring the case to the high court. “This certainly opens the door to same-sex couples being able to marry in California,” says McClain, “but the exact details about how this will work are not entirely clear.”

The decisions, although split, reflected a trend toward broader support for same-sex marriage. A dozen states and the District of Columbia currently permit gay marriage; three of those states enacted their laws since the high court heard its cases in March.  Polls show a majority of Americans support homosexuals’ right to marry.

McClain parsed the decisions for BU Today.

Supreme Court rulling, Defense of Marriage Act DOMA, California Proposition 8 Prop 8, gay marriage, civil rights

BU Today: Do you agree with the court’s decisions?

McClain: On DOMA, this is an inspiring opinion. Justice Anthony Kennedy, who wrote the majority opinion, shows his characteristic concern for dignity and status with respect to gay men and lesbians. The word “dignity” appears repeatedly in his opinion. Marriage, he noted, bestows “status and dignity.” By contrast, he wrote that Section 3 of DOMA “writes inequality into the entire United States Code.”

Kennedy avoided deciding this case purely on a states’ rights or federalism rationale. Instead, he focused on what New York was attempting to do when it changed its marriage laws to allow same-sex couples to marry, and when it recognized Edith Windsor’s out-of-state marriage and how DOMA undermined that. State law, in other words, confers dignity and respect; federal law injures and denies respect.

Kennedy stresses that part of the dignity of marriage is that it entails rights and responsibilities; DOMA deprives same-sex couples of these rights and responsibilities. Kennedy stresses that it is unconstitutional for DOMA to create two different tiers of married couples, for purposes of federal law, when all those couples are lawfully married under state law.

With the Prop 8 case, the court did what people expected it to do—avoid ruling on the merits. The particularly interesting thing to me is the ideological mix of justices in the majority and the dissent. While the majority and dissent in Windsor were what one would expect, with Kennedy the decisive fifth vote striking down DOMA, the alliances in the other case were surprising, with some liberals and moderates joining Chief Justice Roberts saying the Prop 8 proponents, as private parties, lacked standing, and a mix of conservatives and Justice Sotomayor joining Justice Kennedy in dissent.

Certainly, Prop 8’s opponents did not get the big victory they sought—which would have been an affirmance of the Ninth Circuit Court opinion overturning Prop 8. But they also did not get a ruling that the Constitution did not include such a right or a ruling affirming Prop 8. So I think people will spin this different ways.

Do you expect more states to legalize same-sex marriage in light of the court’s overturning DOMA?

I believe that Justice Kennedy’s opinion may inspire some state legislators to enact marriage equality laws, but overruling DOMA will not have any immediate practical impact in states that do not allow same-sex couples to marry.

What impact are the court’s decisions likely to have on Congress and the president?

Congress is not likely to re-enact DOMA given that the court has struck down Section 3. The president, however, is most likely going to direct the various departments and agencies of the federal government to stop enforcing DOMA and to recognize marriages valid under state law as valid under federal law. President Obama previously said his administration would continue to enforce DOMA until it got a definitive judicial resolution. Now he has it.

What will be the practical effects of the court’s decisions?

Couples lawfully wedded under state law will be treated as married for purposes of those numerous federal laws that refer to marriage, e.g., tax laws, veterans benefits, health care, Social Security, and the like.

In California, Governor Jerry Brown, after getting legal advice, has now ordered all county clerks to issue marriage licenses to same-sex couples once the Ninth Circuit Court lifts the stay it placed on its ruling overturning Prop 8 pending the Supreme Court’s decision.

The decisions won’t affect religious denominations that refuse to perform same-sex marriages, correct?

Neither ruling will affect the religious liberty of religious denominations. They remain free to define marriage, as a matter of religious law, as their religion prescribes. No religious official has to perform a marriage that offends his or her religious beliefs. These decisions relate to marriage as a civil institution, licensed by the state.

Rich Barlow

Rich Barlow can be reached at barlowr@bu.edu.

10 Comments on Gay Marriage Decision Confers “Equal Citizenship,” BU Scholar Says

  • Francie on 06.27.2013 at 8:17 am

    Nowhere in all the news stories have I read about the status of Widow Windsor’s tax payments. Are they going to be forgiven, assuming that her marriage will now be deemed legal? Will the court’s decision be retroactive in her case, negating the estate taxes owed? Or does the timing of the court’s decision leave her tax issues as they are now?

    • Joe on 06.27.2013 at 2:04 pm

      I wish I could point you to the exact resource, but the Supreme Court affirmed the Second Circuit’s opinion, which granted Windsor re-payment of the estate taxes, plus interest. So, Windsor will get the full $360,000 or so, plus whatever interest that money would have accrued had she had full access to the money when her wife died. Does that make sense?

  • Matt on 06.28.2013 at 2:10 am

    Sorry about the previous incomplete post…Read below…

    Some people point to lifting ban on gay marriage as being equivalent to lifting oppressive slavery laws due to race. In my opinion, these are not the same thing. We don’t violate race because it is a sacred thing. In the same light, we shouldn’t violate sexuality, because it is a sacred thing given to us by God who has also defined it very easily for us. I do not agree with homosexuality, as it is not in keeping with the Bible; neither is it in keeping with practical/logical outworkings of physical reproduction. It is also disturbing to me that church leaders have folded under the pressure or maybe forgotten the extremely clear words that God has spoken against homosexuality. There is no room for mis-interpretation. Only willful ignorance. Harsh as these words may come across, I don’t say it with anger. Just pity. Also, I am not homophobic by any means. I have lived in San Francisco for a large portion of my life and I do have several homosexual friends and will continue to keep their company, which I enjoy. Being friends doesn’t mean agreeing on everything.

    • CJ on 06.28.2013 at 1:16 pm


      With the understanding that you’re not homophobic, as you claim, it seems as though you are defending a law whose sole purpose was to impress theological beliefs on others. The separation of church and state is a basic principle of American government. Any reasonable person should discern that the federal government should have no role in deciding who is allowed to marry while it is based on religious belief. Yeah, yeah, everyone claims that we are a Christian Nation. Well, I’m an atheist, and the thought of infringing on the rights, and therefore benefits, of others based on ‘the Word of God’ quite frankly makes me sick.

      That being said, I’m glad this debate is settled, despite the fact that it took this long to do so.

      • Matt on 06.28.2013 at 9:10 pm


        Your point is well taken. I do defend the Bible because I believe it to be the truth. And regardless of separation of church and state, ultimately, what matters IS the truth. Thus, the issue of homosexuality is something I believe to be deeper than separation of church and state. It’s a matter of the state of the human heart, which is fallen (including me), and that’s why we need a Savior.

        If we don’t agree on any point, that’s fine, but I think you would agree with me in that what matters is the truth. And to that effect, if I know the truth, I care enough to share it with others. Not “impose”, as you say.

        • Claire on 08.13.2013 at 5:53 am

          Thank you, Matt and God bless! :-)

    • P M on 06.29.2013 at 5:12 pm

      Yes, completely aside from the fact that we live in a nation built upon religious liberty, the Christian view of homosexuality is, in fact, highly debated. That fact alone should tell us that it has no standing to be the basis of any law, even if we lived in a theocracy.

      Dr. Jennifer Knust, a deeply religious individual, Baptist minister, and renowned scholar, points out that you can use the bible’s messages regarding sex, including homosexuality, are mixed. You don’t have to completely agree with her on everything (I don’t, and she’s my favorite professor at BU!), but realize that this is an issue that is debated and the view that supports gay marriage has a large following by many in the religious realm, and their arguments are very compelling. You can still personally believe that it is wrong, but you cannot dismiss that there are people who use the bible to say the opposite.

      As far as your “I’m not homophobic because I have gay friends, but I still think it’s wrong” stance goes, I find this highly patronizing, but a little amusing. As a gay man who grew up in a very religious environment, I can tell you that this is not the same stance taken for anything else believed to be a sin. People who are “living in sin” that isn’t homosexuality aren’t treated differently, stripped of particular rights granted everyone else, and rejected by their families. I can’t take that stance seriously. You are telling me, “I don’t hate you for being gay, I just think we should enact laws so that you are reminded every day that you are a second class citizen because of who you go to sleep with at night.” Please clarify for me how what you said is different.

      And honestly, nobody comes forth attacking the “heterosexual lifestyle,” judging you for what you do in your personal life. You don’t have to worry about introducing a significant other to your family because of her gender. You probably didn’t miss out on an important chunk of your life, adolescence, because you were depressed and thinking your desires were sinful, and trying to change, only to realize years, or decades, later that it was all futile. And I highly doubt that you remain introverted in order to avoid the chance that the subject of your sexuality might come up in conversation, thus rendering you a loss of meaningful platonic relationships over many years. I’m sorry, but you simply can’t relate to what gay people go through, still today, regardless of how qualified you feel to state your argument because you happen to have friends who can relate.

      • Matt on 07.01.2013 at 2:36 pm

        Read the link you posted. The argument, in my opinion, seems to be twisted to make homosexual lifestyle justified. All of the meaning taken from those verses have been read into and molded into something it’s not supposed to be.

        Let me give you a few versus that make it absolutely clear…And these versus plus several others ARE the reason I can dismiss people who use the Bible to say the opposite about homosexuality.

        Leviticus 18:22
        “Do not practice homosexuality, having sex with another man as with a woman. It is a detestable sin.” (NLT)

        1 Corinthians 6:9-11
        Don’t you realize that those who do wrong will not inherit the Kingdom of God? Don’t fool yourselves. Those who indulge in sexual sin, or who worship idols, or commit adultery, or are male prostitutes, or practice homosexuality, or are thieves, or greedy people, or drunkards, or are abusive, or cheat people-none of these will inherit the Kingdom of God. Some of you were once like that. But you were cleansed; you were made holy; you were made right with God by calling on the name of the Lord Jesus Christ and by the Spirit of our God. (NLT)

        1 Timothy 1:8-10
        Now we know that the law is good, if one uses it lawfully, understanding this, that the law is not laid down for the just but for the lawless and disobedient, for the ungodly and sinners, for the unholy and profane, for those who strike their fathers and mothers, for murderers, the sexually immoral, men who practice homosexuality, enslavers, liars, perjurers, and whatever else is contrary to sound doctrine … (ESV)

        I use the Bible as a compass for my life. I try to follow what it says the best I can. After reading that, it’s pretty clear to me which way the Bible points on this issue. Sometimes, I do wish it said differently, but whatever I WISH in life, ultimately doesn’t matter. The truth does.

        My non-homophobic comment was meant to be just that. I didn’t want people to think that I hated homosexuals while reading my first post. I do sympathize with the amount of possible verbal/emotional and what other kind of abuse you have may experienced in your life. I believe people do an awful job of not loving others despite having differences. And I am ashamed to say, Christians often do the worst job of this. Ultimately, I try to love everyone as best I can regardless of what they believe and what they do. I try to share the truth of the gospel with them in love, which may seem forced/imposed on the receiving end, but that’s not my intention. I’ll end with this comment — this not a issue of enacting laws so that homosexuals can be reminded that they are “second class citizens” —- which they are not. To me, this is an issue of the heart. And our hearts, definitely including my heart, is broken and fallen short of God’s standard and that’s why we need a savior.

        • Bea on 07.04.2013 at 2:45 pm

          I think using the argument that you are not homophobic because you have gay friends is the same thing as someone saying he’s not racist because he has black friends. I also think it’s interesting how everyone interprets the bible differently. Everyone finds a way to use it to justify their opinions or prejudices. I don’t think it matters what you believe is true. The point is that this is not a theocracy. You are free to believe whatever you want, but just because you believe this that and the other does not mean you have a right to tell people who they can and can’t legally marry. It’s like saying that because you hate the color purple, no one should be allowed to wear it. I can understand people who are against gay marriage not wanting gay people to have a traditional Christian wedding. But in terms of the law, people should be allowed to be legally married whoever they choose. I think that if gay people can’t get married, we may as well just go back to miscegenation laws, which were equally senseless. Prejudiced people refuse to change their discriminatory views because they are not logically based, they are emotionally based. The more you try to reason with a prejudiced person, the more they cling to their beliefs. The role of religion is paradoxical. It makes prejudice and it unmakes prejudice.

          • Claire on 08.13.2013 at 6:06 am

            Hi Bea,

            The word of the Bible is the word of God and that is truth. God does not like the acts of sin. God loves all people and all people have sinned. Man tries to say that God hates specific people that sin, but truth has it God loves all people, but disapproves the act of their sins!
            As a Christian I love all people, but pray for those including myself that fall into sin. It is not my place to condemn or judge, but pray and be there for my fellow man or woman that falls into sin. :-)

            Best regards,

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