That many Americans were shocked by the Supreme Court’s decisions in two gay marriage cases Wednesday is understandable. The pace of change in the nation has been shockingly rapid, and in many cases, dislocating.
To paraphrase the Oldsmobile commercial from the late 1980s, this is not your father’s America. There are more non-white babies born each year than white ones. Increasing numbers of Americans say they are unchurched. People carry computers in their pockets. Women outnumber men in colleges and professional schools by 3-2. The economy has changed profoundly; jobs have disappeared, incomes have shrunk for all but the wealthiest Americans. General Motors doesn’t even make Oldsmobiles any more.
Of all the changes in America in the past decade, the one that has happened fastest is the mainstreaming of gay and lesbian relationships. As Justice Samuel J. Alito noted in his dissent to the court’s decision Wednesday ruling the Defense of Marriage Act unconstitutional, no country in the world permitted same-sex marriage until the Netherlands did so in 2000. Three years later, Massachusetts became the first state to legalize gay marriage.
As of Tuesday, there were 12. With the court’s decision Wednesday not to decide an appeal of a lower court ruling invalidating California’s Proposition 8, there will be 13 in about a month (or less) when California rejoins the list.
The history of this nation has been that legal rights expand. It just doesn’t usually happen as fast as it has happened with the gay rights movement.
In 1996, the Republican-led Congress saw the movement coming and tried to get out in front of it by amending the Dictionary Act — which defines a lot of meanings of words used in the federal code - to restrict marriage to people of the opposite sex.
The Defense of Marriage Act had a lot of Democratic support, giving it veto-proof majorities. President Bill Clinton, who was running for re-election, chose to avoid a veto fight and signed it. He has since apologized.
As Justice Anthony Kennedy, writing for the majority in Wednesday’s U.S. v. Windsor decision, noted, “Subject to certain constitutional guarantees … ‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’”
Indeed, in passing DOMA in 1996, supporters acknowledged that some states might eventually choose to legalize same-sex marriage. What they failed to account for were various rights and benefits, scattered throughout more than 1,000 parts of federal law, that accrue to spouses.
The question then became what happens to those rights for legally married same sex-spouses. The answer, ruled the court’s 5-4 majority, is that gay married couples have the same rights as straight married couples. DOMA had unconstitutionally discriminated.
Much of the dissent — and there were three of them, from Chief Justice John G. Roberts Jr. and Justices Alito and Antonin Scalia — turned on fine points of law and not the moral arguments that DOMA’s supporters had touted in 1996.
Indeed, in one of his famously scathing and brilliantly written dissents, Justice Scalia was outraged that the court’s majority had claimed DOMA’s supporters were “mean-spirited” and a “lynch mob.”
“In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us,” Justice Scalia wrote. “The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s court can handle. Too bad.”
Justice Scalia predicted that same-sex marriage supporters would be back before the court again — “maybe next term” — seeking equal treatment under state laws, as well as federal laws.
No doubt he’s correct. In the decade or so that the same-sex marriage issue has become top-of-mind in the United States, the equality question has driven the debate. As more and more gay Americans have stepped out of the closet, their families and friends have realized that this is not a moral issue, but an equal-rights issue. In the phrase “gay and lesbian Americans,” the key word is the last one.
The court, as usual, is behind the people whose laws it interprets. On Wednesday, it did some catching up.
From the St. Louis Post-Dispatch