Q&A: Kevin Noble Maillard Explains Supreme Court's Gay Marriage Decisions

maillardCollege of Law Professor Kevin Noble Maillard, an expert on family law, explains Wednesday’s U.S. Supreme Court decisions on marriage equality.

Q. Is this a landmark moment for gay rights? In what way?


A. Absolutely. The court's ruling on the Defense of Marriage Act (DOMA) erases the unequal treatment of gays and lesbians in the right to marriage. Now, there is no special, specific law that singles them out, and they are equally eligible for tax benefits and 1,100 other federal protections for married couples. Most notably, binational couples can now safely have their spouses emigrate to the United States.

Q. The reports are saying that DOMA has been partially struck down. What has been struck down and what was left intact?


A. States do not have to recognize the same sex marriages from other states. For example, a couple that marries in New York cannot move to Alabama and have it recognized there. But the federal government must recognize those marriages validly contracted in the states where same sex marriage is legal. Previously, DOMA prevented that latter recognition.

Q. How did the justices rule on the accompanying Proposition 8 case?


A. The majority ruled that the litigants did not have standing to bring the case before the Supreme Court. The proponents of Prop 8 [defining marriage as the union of a man and woman in California] did not have a direct interest in the outcome, only a generalized interest. Because the State of California no longer defends Prop 8, the suit was brought by ProtectMarriage.com and other supporters. The court's majority did not view these groups as properly representing the state of California. Since the court ruled that there was no standing, the lower court rulings declaring Prop 8 unconstitutional will stand, and Prop 8 no longer has legal effect in California. In California alone, gay marriage is now legal.

Q. What will be the practical effect of these rulings for gay couples and families?


A. Couples in California now have the equal right to marry because Prop 8 has been defeated. And couples in the states where gay marriage is legal may now receive federal benefits and protections, which means they can enjoy the full right to marriage, and not only a "skim milk" version.