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. —House Speaker John Boehner, R-Ohio
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.”
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.”
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.