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Duke Law Professor Neil Siegel on DOMA Decision

By Michael Papich Posted June 27, 2013 at 11:18 am

Photo courtesy of Duke Law.

WASHINGTON, D.C. – The United States Supreme Court ruled Wednesday that a provision of the Defense of Marriage Act that defined marriage at the federal level of only between a man and a woman was unconstitutional.

While professor of law at Duke University, Neil Siegel, says that this ruling was actually expected by many observers of the court, the way in which Justice Anthony Kennedy read for the majority was surprising.

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“This was first and foremost a decision about equal citizenship stature,” Siegel says. “There was some really striking language here about how the federal law placed same-sex couples in an unstable position of being in a second-tier marriage.”

Siegel says this language was surprising coming from Kennedy because, not only is he a more conservative justice than the court’s four liberal justices who ruled alongside him, but because Kennedy is known to talk more about federalism than equality, as he did during the DOMA case’s oral arguments.

Because same-sex marriage is not recognized in North Carolina, same-sex married couples here still won’t receive the 1,138 federal benefits related to marital status. But although Wednesday’s ruling, and the court’s decision not to hear the case on California’s Proposition 8, does not affect North Carolina now, Siegel says it could lead to change further down the road.

“If you believe in same-sex marriage, you have a litigation advantage now that you didn’t before,” Siegel says. “And if you’re opposed to it, you’re going to have to work hard to distinguish other language in this opinion.”

In the Amendment One ballot initiative on May 8, 2012, North Carolina amended the state’s constitution to say that “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized.”

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