Why States That Ban Gay Marriage Are Resting Easy after Supreme Court Rulings

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The two gay marriage rulings from the US Supreme Court this week have prompted big sighs of relief coming from the 35 states with bans on same-sex marriage. Nothing in the high court's actions imperil their bans, say officials from those states, and in fact the justices affirmed the rights of states to define legal marriage how they see fit.

That may seem counterintuitive, given that gay rights supporters heralded the Supreme Court's moves, and that, as a result of its actions, gay marriages will soon resume in California, despite that state's voter-approved ban known as Proposition 8.

States with gay marriage bans can feel confident that those laws are not in legal jeopardy because the justices did not rule on the merits of same-sex marriage itself, only on the issue of federal benefits for those whom states deem to be married, says John Dinan, a political scientist and state constitutional expert at Wake Forest University in Winston-Salem, N.C. In the case involving the federal Defense of Marriage Act, the majority opinion, written by Justice Anthony Kennedy, describes the burden of DOMA on same-sex couples, but it does not venture into territory such as advising states with bans to change course or make adjustments.

"Legally, we're in the same place today that we were at the beginning of the week. No real new ground has been broken in that direction," Professor Dinan says. "Nothing came out of the two decisions that changed the legal terrain that would make those states vulnerable."

Officials from such states asserted likewise.

"The US Supreme Court ruled that states, not the federal government, retain the constitutional authority to define marriage. Michigan's constitution stands, and the will of people to define marriage as between one man and one woman endures in the Great Lakes State," said Michigan Attorney General Bill Schuette in a statement released soon after the ruling. Michigan's voter-approved constitutional ban of same-sex marriage was established in 2004.

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US Rep. Tim Huelskamp (R) of Kansas told reporters that the "one good thing out of the decision was the court did not declare that there was a constitutional right for same-sex marriage" and that Kansas "will be able to maintain its marriage amendment" prohibiting gay marriage.

In a 5-to-4 decision issued Wednesday, the Supreme Court said Congress cannot treat same-sex married couples differently than opposite-sex married couples for purposes of qualifying for some 1,100 federal benefits, thereby overturning the guts of the federal Defense of Marriage Act (DOMA). As a result, same-sex couples residing in one of the 13 states where gay marriage is legal are soon to be entitled to all the federal benefits that heterosexual married couples receive.

In a separate ruling issued the same day, the high court dismissed the appeal from backers of California's Proposition 8, saying they did not have legal standing. That means a lower federal court ruling that California's ban is unconstitutional prevails in that state.

Thirty-five states define marriage as between a man and a woman, according to the National Conference of State Legislatures. In 29, the gay-marriage ban is enshrined in a state's constitution, adopted by the state legislature after a popular vote. …