Now that the Supreme Court has struck down the federal Defense of Marriage Act, and punted on Proposition 8, allowing California to continue licensing gay marriages, the two largest legal battles for gay-rights advocates have essentially ended. So what comes next?
Obviously, for most, is legalizing gay marriage on a state level in the 37 states that do not currently give marriage licenses to gay couples. Since the Supreme Court's ruling wasn't broad enough to establish a constitutional right to marriage, all existing state law is still effective; at the Atlantic Wire, Philip Bump takes a look at polling and finds the 10 states most likely to legalize gay marriage next—that is, those where it isn't yet legal but has over 50 percent support:
In order, those states are New Jersey, with 64 percent support (where "moderate" conservative Governor Chris Christie has vowed to veto any gay-marriage bills); Michigan, with 57 percent; Virginia, at 56 percent; Arizona and Hawaii, both at 55 percent; Nevada, Oregon, and Pennsylvania, with 54 percent; Colorado, with 51 percent; and Illinois, at exactly 50 percent.
One problem (really, many related problems) that confronts activists is that many states have, like Minor Threat-listening teens getting straight-edge tattoos they will someday regret, amended their constitutions to define marriage as the union of a man and a woman. So even if the federal government recognizes gay marriage, it may be prevented from (or choose not to) distribute benefits to a legally married gay couple living in a state that does not recognize their marriage. In the Times, Jeremy Peters looks at how advocates plan to address the contradictory "legal patchwork" of state and federal law:
“Living in this kind of patchwork country is becoming less and less tenable,” said Susan Sommer, the director of constitutional litigation for Lambda Legal, the gay rights group. “If we’re going to have federal benefits and recognition, it certainly makes a state’s withholding of the freedom to marry come with that much greater a cost — an impairment of liberty.” [...]
[W]ould-be recipients of Social Security survivors’ benefits could run into trouble if they have moved since getting married. Eligibility for survivors’ benefits depends on where the potential recipient lived at the time he or she applied. So unless the Obama administration can find enough legal room in the Windsor decision to give it the authority to change how Social Security benefits are administered, some same-sex couples will be left without spousal benefits.
President Obama has indicated that his administration will push for federal benefits to be awarded to any couple with a marriage license, even if they move to a state in which gay marriage is illegal, and Senator Dianne Feinstein will introduce a bill to the same effect next week. But activists aren't holding their breath (breaths?).
And, finally, beyond marriage there's ENDA, the employment non-discrimination act, perpetually proposed and perpetually delayed, currently winding its way through House and Senate committees, and unlikely to see the day with this particular congress.