2 responses to the Supreme Court rulings on gay marriage

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.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Opinion

THis is an editorial cartoon by Michael de Adder . Michael de Adder was born in Moncton, New Brunswick. He studied art at Mount Allison University where he received a Bachelor of Fine Arts in drawing and painting. He began his career working for The Coast, a Halifax-based alternative weekly, drawing a popular comic strip called Walterworld which lampooned the then-current mayor of Halifax, Walter Fitzgerald. This led to freelance jobs at The Chronicle-Herald and The Hill Times in Ottawa, Ontario.

 

After freelancing for a few years, de Adder landed his first full time cartooning job at the Halifax Daily News. After the Daily News folded in 2008, he became the full-time freelance cartoonist at New Brunswick Publishing. He was let go for political views expressed through his work including a cartoon depicting U.S. President Donald Trump’s border policies. He now freelances for the Halifax Chronicle Herald, the Toronto Star, Ottawa Hill Times and Counterpoint in the USA. He has over a million readers per day and is considered the most read cartoonist in Canada.

 

Michael de Adder has won numerous awards for his work, including seven Atlantic Journalism Awards plus a Gold Innovation Award for news animation in 2008. He won the Association of Editorial Cartoonists' 2002 Golden Spike Award for best editorial cartoon spiked by an editor and the Association of Canadian Cartoonists 2014 Townsend Award. The National Cartoonists Society for the Reuben Award has shortlisted him in the Editorial Cartooning category. He is a past president of the Association of Canadian Editorial Cartoonists and spent 10 years on the board of the Cartoonists Rights Network.
Editorial cartoons for Sunday, July 6

A sketchy look at the news of the day.… Continue reading

A Volunteers of America Western Washington crisis counselor talks with somebody on the phone Thursday, July 28, 2022, in at the VOA Behavioral Health Crisis Call Center in Everett, Washington. (Ryan Berry / The Herald)
Editorial: Dire results will follow end of LGBTQ+ crisis line

The Trump administration will end funding for a 988 line that serves youths in the LGBTQ+ community.

FILE — The journalist Bill Moyers previews an upcoming broadcast with staffers in New York, in March 2001. Moyers, who served as chief spokesman for President Lyndon Johnson during the American military buildup in Vietnam and then went on to a long and celebrated career as a broadcast journalist, returning repeatedly to the subject of the corruption of American democracy by money and power, died in Manhattan on June 26, 2025. He was 91. (Don Hogan Charles/The New York Times)
Comment: Bill Moyers and the power of journalism

His reporting and interviews strengthened democracy by connecting Americans to ideas and each other.

Brooks: AI can’t help students learn to think; it thinks for them

A new study shows deeper learning for those who wrote essays unassisted by large language models.

Do we have to fix Congress to get them to act on Social Security?

Thanks to The Herald Editorial Board for weighing in (probably not for… Continue reading

Comment: Keep county’s public lands in the public’s hands

Now pulled from consideration, the potential sale threatened the county’s resources and environment.

Comment: Companies can’t decide when they’ll be good neighbors

Consumers and officials should hold companies accountable for fair policies and fair prices.

Comment: State’s new tax on digital sales ads unfair and unwise

Washington’s focus on chasing new tax revenue could drive innovation and the jobs to other states.

toon
Editorial: Using discourse to get to common ground

A Building Bridges panel discussion heard from lawmakers and students on disagreeing agreeably.

Senate Minority Leader Chuck Schumer (D-N.Y.) speaks during a news conference at the U.S. Capitol on Friday, June 27, 2025. The sweeping measure Senate Republican leaders hope to push through has many unpopular elements that they despise. But they face a political reckoning on taxes and the scorn of the president if they fail to pass it. (Kent Nishimura/The New York Times)
Editorial: GOP should heed all-caps message on tax policy bill

Trading cuts to Medicaid and more for tax cuts for the wealthy may have consequences for Republicans.

Alaina Livingston, a 4th grade teacher at Silver Furs Elementary, receives her Johnson & Johnson COVID-19 vaccine at a vaccination clinic for Everett School District teachers and staff at Evergreen Middle School on Saturday, March 6, 2021 in Everett, Wa. (Olivia Vanni / The Herald)
Editorial: RFK Jr., CDC panel pose threat to vaccine access

Pharmacies following newly changed CDC guidelines may restrict access to vaccines for some patients.

Forum: Protecting, ensuring our freedoms in uncertain times

Independence means neither blind celebration nor helpless despair; it requires facing the work of democracy.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.