Prelude to further change ?

Pundits across the political spectrum are predicting that the SCOTUS decisions on marriage equality (DOMA overturned and Prop8 dismissed) can only be a way station on the way to striking down all states laws banning same-sex marriage.  The liberals hope that's true;  the conservatives fear that it is.

Liberal AJC columnist Jay Bookman wrote about this today.   Justice Anthony Kennedy's majority opinion was based on the equal protection clause -- that is, the federal government may no longer treat legally married,  same-sex couples differently from opposite-sex couples in all of the benefits and privileges provided by the federal government.

And Bookman then writes:

If the Fifth Amendment does not allow the federal government to discriminate against and demean gay couples, it stands to reason that it also bars Georgia and other states from doing so.

Now the court decision did not say this.  But think of the complexities and the evident unfairness -- just for our military personnel alone.   Let's say Sgt. Joe Jones married Mr. Steve Smith in his home state of New York, and is now stationed in Texas.   Mr. Smith, as a legal spouse, is entitled to family medical benefits, may use the base gym, shop in the commissary, their adopted son goes to a preschool on base, he gets survivor benefits -- and hundreds of others.

But Sgt. Susie Sanford, also stationed in Texas, and her partner Ms. Beverly Brown are just as committed a couple as the Jones-Smiths, and they would like to marry.   But they cannot marry in Texas because it is not legal there.   So Ms. Brown does not get medical benefits, cannot use the gym or shop on base, and their son cannot attend the base preschool.

So two U. S. soldiers stationed on the same base, and their families, are treated differently as to federal benefits, based on laws that differ from state to state.

Some will argue that giving benefits to any unmarried partner would open the door to more casual, not-really-committed, heterosexual relationships asking for benefits.   The differences is that those people could get married, whereas Sgt. Sanford and Ms. Brown cannot -- at least not in the state they currently reside in.

Conservative AJC columnist Charles Krauthammer supports allowing states to decide their own marriage laws, i.e. a federalism rationale;   but he also predicts that the equal protection reasoning in the DOMA decision will lead to a broader decision in the future that will include all states.  He writes:

If discrimination (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas where a gay couple is prevent from marrying in the first place?

Conservative Justice Antonin Scalia, himself a scathing critic of the majority's decision, predicted long ago that this would be the result eventually.

So why didn't the majority go ahead and find all state laws banning same-sex marriage unconstitutional?   Probably because:  (1) they might not have been able to get five votes for that but could for the more limited decision;  or (2) some really believe it should be a state by state decision, a federalism position;   and/or (3) they felt it would be better to take it a step at the time and wait for further social change and further shift in public opinion -- knowing full well that there will soon be cases suing to overturn state laws based on this precedent under the equal protection clause.

Once again:   although we might like to have it all now, sometimes there is wisdom in a more gradual remedy of injustice, so that you don't get too far ahead of the people in sweeping social change.   And so that, when it does finally come, a more sweeping change will be accepted rather than evoking backlash.

Ralph