Nevada’s case differs in that the state already had a civil union provision in place, adopted by the legislature over the governor’s veto in 2009. Nevada’s broad civil union was so far-reaching as to render the prohibition against gay marriage in the state almost meaningless, as least with regard to any legal or financial benefits.
Ohio’s case is somewhat different in that the federal judge struck more narrowly, finding that Ohio had a history of recognizing marriages performed in other states, such those involving cousins or minors. Ohio was, he argued, thus obliged to make similar allowance for same sex marriages. Moreover, the Ohio ruling seemingly applied only to death certificates.
But as Kennedy did in Windsor, Black used language that swept widely. Black found that when “a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family and intimate relations specifically protected by the Supreme Court.”
Black also argued that "once you get married lawfully in one state, another state cannot summarily take your marriage away.”
It’s hard to see how that language could be constrained to death certificates. At the very least, Black's holding seems to push toward requiring states that ban gay marriage to recognize those performed in other states. Black’s decision is thus a direct challenge to the remaining leg of the Defense of Marriage Act, which insulates states from recognizing same-sex marriages performed in other states.
“A lot depends on whether the courts of appeal take seriously the Supreme Court’s assurances that the states will be allowed to shape their own marriage laws,” said Bill Duncan, director of the Marriage Law Center for the Utah-based Sutherland Institute.
Overlooked in the focus on Scalia’s dissent, Duncan said, is another dissent, this one by Chief Justice John Roberts, which sought to lock the majority into its promise to respect state marriage definitions, forestalling what Scalia predicted and, oddly, helped bring about with his own dissent.
“However Kennedy views the legal arguments will determine the final outcome,” Duncan said. “Kennedy has always supported plaintiffs on gay rights matters, but he also has a long tradition of supporting federalism and state autonomy.”
So was Roberts or Scalia right in their reading of Kennedy’s Windsor ruling? Does Windsor protect states in defining marriage? Or does it lay the groundwork for upheaval?
Only Justice Kennedy knows for sure.
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