Kennedy did not say that all state laws defining marriage stem from irrational hostility, said Sherif Girgis, co-author of "What is Marriage? Man and Woman: a Defense." Girgis said that imprecision in Kennedy’s reasoning creates a fuzzy no man’s land that will invite further litigation. The rulings left in place the laws and constitutional provisions in 35 states that only recognize marriage as between a man and a woman. The ruling on Proposition 8 made California the 13th state that allows same-sex marriage.
Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito all wrote dissents, most of which centered on arguments that the court should have declined jurisidiction in the case. But Scalia's lengthy, passionate and scathing dissent stood out.
Reacting to Kennedy's claim that DOMA reflected raw and unreasoned hostility, Scalia pointed out that these charges were being made against the U.S. Congress and a Democratic president, not "the legislature of some once Confederate Southern state."
And Scalia objects that rather than treat the arguments supporting DOMA fairly, "The majority does the opposite — affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the 'arguments put forward' by the Act’s defenders, and does not even trouble to paraphrase or describe them."
Scalia also expresses the suspicion that Kennedy's logic cannot be isolated to the federal statute and will shortly be brought to bear to overturn state laws. "As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe."
In the face of this upheaval, some traditional marriage advocates now fear that the long-term game plan of gay marriage advocates is to drive from the public square any who disagree.
"It is a very serious danger," McConnell said. "I think there are those in the same-sex marriage movement who have every intention of trying to stigmatize their opponents as being bigots and drummed out of civil society.” But he also said there is a wing of the gay rights movement that is more tolerant and open to a commendation.
“I don’t think it will ever be seen as bigotry to say that there is something wonderful about two parents raising a kid who they conceived together in marriage,” said Rauch, a gay marriage advocate. “Too many people do it, and there is too much human instinct. That’s not going to change.”
Rauch sees sexual preference as distinct from race, perhaps more akin to gender. People can still say that a mother is better off being at home with her kids without becoming a pariah, he said.
“I doubt it is going to be the equivalent of running around spouting white supremacist,” Rauch said, adding that Catholics and other Christians have long and deep traditions that regulate not just marriage but sexuality in general. “It’s going to be pretty hard to marginalize that,” he said.
“But it could happen, and it might deserve to happen,” Rauch said. Much depends on the tone that emerges of public discourse moving forward, he said.
Former Utah Gov. Michael Leavitt, who after leaving state office served as EPA administrator and later as secretary of the Department of Health and Human Services, is attuned to the compromises that shifting political ground may demand. Leavitt, a staunch proponent of traditional marriage, said many Americans live in jurisdictions that sanction same-sex marriage, and more will follow.
“In those places it is absolutely crucial that the established constitutional right of freedom of religion and the now-established right of gay marriage are not mutually exclusive,” Leavitt said.
“People need to have the right to practice their religion and have their conscience protected,” Leavitt said. Leavitt sees a direct parallel to experience as HHS secretary, when he became attuned to the challenges of conscience, especially among Catholics and other Christians working in the medical professions.
The biggest threat to the argument of religious liberty, Leavitt argues, comes from a 1990 Supreme Court decision that stripped religion of its special status in constitutional law, leaving it dependent on statutes. “People are asleep at the switch,” Leavitt said. “There are lots of statutes being enacted that are devoid of those protections.”
Accommodation must be found, Leavitt said, but it will be a political process.
Eric Schulzke writes on national politics for the Deseret News. He can be contacted at email@example.com.
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