“I oppose same-sex marriage, but I’m much more concerned about the breakup of the heterosexual family. If we can’t keep our own marriages together, what kind of moral power do we have to tell other people they ought to be like us? A lot of conservative politicians are on their second, third, or fourth spouse and are talking about traditional values. That doesn’t have a lot of power.” Cal Thomas, World magazine, June 15, 2013, p. 36.
“The [Supreme Court] decision is a major victory for gay marriage because it means the federal government must now accept same-sex marriages in the 13 states where they are legally recognized. But what happens when a gay couple married in Hawaii, say, moves to Alabama? Which state’s law does the federal government then recognize? Soon enough lower courts will declare that laws barring gay marriage to be illegal and the Supreme Court will have to revisit the issue.
“Our hope is that Justice Roberts is right about Justice Kennedy’s opinion, and that the gay marriage debate can continue to play out democratically in the states. As Justice Scalia writes, such basic moral and social issues are best settled through politics and not judicial ukase.” The Wall Street Journal, June 27, 2013, p. A 20.
“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance [DOMA] is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.” Antonin Scalia, Ibid.
Yet the court’s other major marriage decision Wednesday, by Chief Justice John Roberts, offered a counterbalance: Roberts dismissed California’s Proposition 8 case on standing, allowing states to continue to debate the definition of marriage.
Justice Anthony Kennedy, writing the DOMA opinion with the court’s four liberal justices, said that if states recognized gay marriage, the federal government could not deny benefits to same-sex married couples. DOMA had created, according to Kennedy, “second-tier marriages” by not recognizing gay married couples.
“It tells those [same-sex] couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,” he wrote. “It humiliates tens of thousands of children now being raised by same-sex couples.”
Justice Antonin Scalia delivered a blistering dissent, saying the Supreme Court was considering itself “enthroned” at the “apex of government” by knocking down a law that Congress passed with strong bipartisan majorities.
“Few public controversies will ever demonstrate so vividly the beauty of what our framers gave us, a gift the court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves,” he wrote. “We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the people decide. But that the majority will not do.”
Scalia further eviscerated the structure of Kennedy’s argument, saying the Supreme Court couldn’t both declare that states should decide marriage while telling them that gay marriage was morally right.
“The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages,” he said. “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”
Scalia concluded that following Kennedy’s ruling, “it is just a matter of listening and waiting for the other shoe,” in terms of courts declaring state traditional marriage laws unconstitutional.
State laws survive for now, thanks to the second opinion of the day. By dismissing the Proposition 8 case, Roberts’ decision preserves the state constitutional amendment as the law in California, even if California officials decline to enforce it. But the outworking of the DOMA decision in the future will likely overwhelm the Proposition 8 decision.
“This [DOMA] decision is far-reaching, with massive implications for family life and religious liberty,” said Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention. “The grounding of this decision in equal protection and human dignity means this is not simply a procedural matter of federalism. This is a new legal reality.”
Some traditional marriage advocates were concerned, but slightly relieved the ruling wasn’t broader.
“The decisions are wrong but things aren’t as bad as they might have been,” said Eric Teetsel, the director of the Manhattan Declaration, a group focused on life, religious liberty, and marriage. “This didn’t do for marriage what Roeand Doe did for abortion. … It doesn’t change marriage policies in states that define marriage as between one man and one woman. Kennedy did ground it in equal protection, which does give us pause. … That’s reason for concern, but that’s concern for another day.”