A historic, full-throated stand for equality
By Emily Bazelon
It’s a rare moment when a court can write a stream of words and make the lives of many thousands of people instantly better. That’s what five Supreme Court justices have done this week by striking down the Defense of Marriage Act. Their historic, tremendously exciting and full-throated stand for equality will bring federal benefits raining down on legally married gay couples in a dozen states — and resonate far beyond even that important change.
Justice Anthony Kennedy wrote the majority opinion in this 5-4 case, joined by Breyer, Ginsburg, Kagan and Sotomayor. You could say that he has been writing his way to this day since 1996, when he ruled against a Colorado law that took away rights for gay people granted by a local ordinance. Kennedy established a principle then that was key to his ruling Wednesday: The government may not single out a group it disapproves of for injurious treatment. In 2003 — 10 years exactly from today — Kennedy, again joined by the court’s liberals, struck down state laws that criminalize sodomy in the name of liberty and personal dignity. This week he used the word “dignity” nine times, by my count, this time joining it to the concept of liberty the court has now embraced.
The constitutional flaw in DOMA, Kennedy wrote, was that its enactment and text demonstrate “interference with the equal dignity of same-sex marriages.” This dignity was conferred by states like New York that recognize same-sex marriage. DOMA stomped into this domain of domestic relations “to identify a subset of state-sanctioned marriages and make them unequal,” Kennedy wrote. “The principal purpose is to impose inequality, not for other reasons like governmental efficiency.” Then there is this classic Kennedy line: “Responsibilities, as well as rights, enhance the dignity and integrity of the person.” And the opinion’s ringing conclusion:
“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. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
Kennedy could have put most of the weight of striking down DOMA on the states’ “exercise of their sovereign power,” in the domain of domestic relations. That’s in the opinion, but it’s secondary. That fulfills the hopes of the gay rights lawyers who chose this case with such care, as the first step on the path to a constitutional right to gay marriage in every state. This case is about federalism, but it is also about equal rights.
Bazelon is a Slate senior editor and writes about law, family, and kids.
DOMA ruling has echoes of Roe v. Wade
By Maggie Gallagher
Justice was not blind at the Supreme Court on Wednesday. It was deaf — deaf to the will of the people of California and the nation. With its decision in the Perry case, a majority of the Supreme Court abandoned the 7 million California voters who passed Proposition 8. And by overturning DOMA, the court subverted the will of Congress and the people who elected the senators and representatives who serve there.
To overturn the Defense of Marriage Act, Justice Anthony M. Kennedy invented a standard of “heightened scrutiny” for any law representing what he termed an “unusual deviation.” As he wrote: “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.”
But that standard of deviation from “tradition” has never been applied to the many laws enacted by Congress that have affirmed new, leftist values.
Kennedy’s reasoning has little to do with the law; rather, he seems to be trying to write his own moral values into the Constitution. He may have seen himself as writing this generation’s Brown v. Board of Education. But in fact, his decision is much more likely to become the Roe v. Wade of this generation.
Many have argued that gay marriage is different from abortion because support for gay marriage is surging in polls and the next generation is firmly pro-gay marriage. But as with gay marriage today, American attitudes toward abortion were rapidly liberalizing in advance of the Supreme Court’s ruling on Roe in 1973.
Another similarity between attitudes toward abortion then and toward gay marriage today is that opposition to abortion was strongest among the older generations. As two scholars writing in the August 1980 issue of the Journal of Marriage and the Family noted, in 1972, those under 30 were less than one-third as likely as those over age 45 to say they disapproved of all abortions, and 66 percent of those under age 30 felt there should be no restrictions at all on abortion.
In the immediate aftermath of Roe, public support for abortion continued to surge, leading many to predict opposition to abortion would literally die off.
Instead, something unexpected happened.
As the government and cultural elites moved more aggressively to use their power to delegitimize Christian views of sex and abortion, churches organized and huge numbers of ordinary people began to insist that their voices and their values be heard.
Today, 40 years later, far from moribund, the pro-life movement is as vibrant and strong as it has ever been. Indeed, the Supreme Court’s ruling in Roe v. Wade not only didn’t settle the matter once and for all, it galvanized a movement of conscience that has continued to grow in strength and reach.
As with the decision written by Justice Harry Blackmun in Roe, Kennedy’s decision in the DOMA case served to disenfranchise millions of concerned voters and to tip the scale of justice in a liberal direction on a controversial moral issue.
But as we learned with Roe, deep moral questions can’t simply be ruled invalid. The concerns about abortion didn’t simply evaporate because of a court decision, nor will they when it comes to same-sex marriage. And a court ruling can’t change the fact that the unions of two men or two women have inherent differences from unions of a man and a woman.
President Barack Obama recently tried to use his eloquence to suggest that supporting gay marriage was virtually mandated by the Declaration of Independence: “If we truly are created equal,” he intoned, “then surely the love we commit to one another must be equal as well.”
Yes, all of us are created equal. All children are created equal. Every baby is equally entitled to life. And every baby is equally entitled to the love and care of the man and woman who made him or her.
Governments cannot always guarantee these rights. But the least it can do is not attempt to negate them with court rulings.
Maggie Gallagher, the first president of the National Organization for Marriage, was a major fundraiser for the campaign to place Proposition 8 on the ballot. She is now a fellow at the American Principles Project. She wrote this for the Los Angeles Times.