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Supreme Court upends marriage debate, foreshadows long struggle

Published: Wednesday, June 26 2013 9:40 p.m. MDT

Traditional marriage advocates now find themselves playing defense on a shifting political and legal field, with some conservative thought leaders looking for a sustainable middle ground.

Lisa Marie Miller , Deseret Morning News

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In a long-awaited decision issued Wednesday, The U.S. Supreme Court struck down a key part of the Defense of Marriage Act, validating same-sex marriages for federal purposes.

The court also sent Proposition 8 back to the federal court in California, effectively legalizing gay marriage in the Golden State.

While both 5-4 decisions played out as most experts had predicted, they stand together as a major victory for gay marriage advocates. At a press conference Wednesday, the president of Human Rights Campaign, the nation's largest gay rights advocacy group, set an objective to get gay marriage approved in all 50 states within five years.

House Speaker John Boehner, R-Ohio, expressed disappointment in the decisions.

"A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman," Boehner said.

Now on defense

Traditional marriage advocates now find themselves playing defense on a shifting political and legal field, with some conservative thought leaders looking for a sustainable middle ground.

A lot of the opposition to same-sex marriage stems “from the fear that conscientious opponents will be victimized,” said Michael McConnell, a former federal judge and the director of the Constitutional Law Center at Stanford University. McConnell hopes that the coming debate over gay marriage in individual states will result in greater accommodation and comity in the long run.

Jonathan Rauch, an editor at National Journal and The Atlantic and a prominent moderate gay rights voice, notes the irony of the political tables being turned. “I think and I hope that gay people having been on the receiving end of [stigmatizing] treatment will be more tolerant and civil in the way they express their views," Rauch said.

Brian Brown, the president of the National Organization for Marriage, said he hopes Congress will continue to protect the rights of states to define marriage, but some reports suggest the White House is actively considering how to cut Congress out of the equation in order to expedite the conferral of full federal benefits to same-sex couples across the nation.

"There remain 29 states with constitutional bans on marriage for same-sex couples, and these will take more time and effort to overturn, particularly in states where there is less support for LGBT equality," Human Rights Counsel legal director Brian Moulton told the New York Times. "We are also likely to see further litigation challenging marriage bans on federal constitutional grounds, and one of them may very well be back in front of the court in the next few years.”

Animus

The decision in the DOMA case was written by swing-voting Justice Anthony Kennedy, who had already established a track record as a judge sympathetic to gay rights, having previously struck down two state laws, in Colorado and Texas, that he thought stigmatized gays and lesbians.

On Wednesday, Kennedy wrote that the authors of DOMA were targeting gays, rather than affirming traditional marriage.

“The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

"The federal statute is invalid," Kennedy wrote, because it seeks to “disparage and to injure” those the state of New York “sought to protect in personhood and dignity.”

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