You can’t say I didn’t tell you. Last autumn, I predicted that the U.S. Supreme Court, in two June rulings, would “nudge the needle toward gay marriage, but in a split decision.” I said it would nix the ’96 law that bars legally-married gay people from getting federal benefits, but that it would decide, in a separate California case, that gay marriage should be extended to Californians – “rather than go big with a ruling that nationalizes gay marriage.”
Which is precisely what happened this morning.
I don’t claim to be a seer; it just seemed logical that a thin majority was poised to take a big (albeit cautious) step forward. As a result, the long arc toward justice is now bent further than ever before. It’s not the whole loaf that marriage equality advocates had hungered for, but it’s a welcome meal nonetheless.
The high court did not decree a constitutional right to marry; it did not say that aspiring gay marrieds everywhere deserve equal protection of the laws under the 14th Amendment. Thirty six states still bar gay marriage, and those prohibitions will stay on the books. The court could’ve swept away those bans by going big in the Proposition 8 California case, but it chose to go small. It basically said that a federal judge in California was right to nullify the 2008 referendum that banned gay marriage, because, after all, the state constitution guaranteed equal protection of the laws to all Californians.
The high court basically punted the California case, stating today that the anti-gay activists who brought the appeal did not have standing to bring the appeal. (Which makes you wonder why the court agreed to hear the appeal in the first place.) So, yes, the court didn’t give marriage equality advocates the sweeping judicial payday they’d been pining for, but it did clear the decks for gay marriage in the nation’s most populous state.
Paeans to ‘dignity’
And the other decision – striking down the ’96 federal Defense of Marriage Act – is historic all by itself. For the first time, the court has recognized the legality of gay marriage (at least in the states that now deem it legal); for the first time, it has decreed that legally gay marrieds deserve to reap the same 1,138 federal benefits that legally straight marrieds enjoy. And the opinion, written by swing voter Anthony Kennedy (it’s his world, we only live in it), says at least 11 times that the government has a duty to safeguard the “dignity” of gay marrieds.
Kennedy said today that states have the “sovereign power” to regulate marriage as they see fit (Kennedy is a big state’s rights guy), but that the ’96 Republican Congress messed with state sovereignty when it passed DOMA. He looked at DOMA’s legislative history, and rightly noted that the law was specifically crafted for homophobic purposes. He quotes from the official House report: “It is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. (DOMA expresses) both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional, especially Judeo-Christian, morality.”
And to enforce this big-government moral decree, DOMA denied federal benefits to legally gay marrieds (there were no legals in America at the time; Congress was just thinking ahead). All told, Kennedy said today, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” And that tactic violates the U.S. Constitution’s Fifth Amendment guarantees of due process and equal protection.
In his words: “By creating two contradictory marriage regimes within the same state, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations (that) the state has found it proper to acknowledge and protect. By this dynamic, DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.”
(That last phrase brings to mind Ruth Bader Ginsburg’s remark, in the March oral hearing, about “skim-milk marriage.”)
Haters on the margin
In conclusion, “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.”
The usual haters didn’t buy Kennedy’s paean to dignity, however. Conservative talk show host Bryan Fischer went on the air today and detonated his own head: “The DOMA ruling has now made the normalization of polygamy, pedophilia, incest and bestiality inevitable. Matter of time.” But people like Fischer are being increasingly marginalized, which is a beautiful thing.
Kennedy did add one caveat in his closing line: “This opinion and its holding are confined to those lawful marriages.” In other words, only legally wedded gays in the 12 marriage-equality states can partake of those federal benefits. For instance, a couple that lives in New York or Maryland is in luck. A couple that lives in, say, Pennsylvania or New Jersey is out of luck. For the foreseeable future, anyway.
But what matters most is the big picture. Ten years ago, zero percent of the population lived in states that allowed gay couples to marry. Now, in the wake of these two Supreme Court rulings, 30.3 percent of the population will live in such states. And there will come a time when even those numbers will seem quaint. A future Supreme Court will see to that.
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