|U.S. Supreme Court decisions last week on same-sex marriage didn’t settle the issue. But some prominent conservatives say the court set the country on a path to universal legalization of gay marriage.
By Brad Knickerbocker
In knocking down the federal Defense of Marriage Act (DOMA) and effectively doing the same to California’s Prop. 8 ban on same-sex marriage, has the U.S. Supreme Court made it inevitable that gay marriage one day will be legal nationwide?
Read literally, the two decisions don’t go that far. But many analysts and legal experts — prominent conservatives among them — believe that to be true, including Associate Justice Antonin Scalia, who wrote an angry rebuttal to the 5-4 majority’s decision on DOMA.
Exactly ten years earlier, Justice Scalia had done the same thing in the high court’s landmark ruling striking down an anti-sodomy law in Texas, which affirmed the right of gay couples to have consensual sex.
Following on from the majority’s ruling in that case, he wrote (again in dissent), “What justification could there possibly be for denying the benefits of marriage to homosexual couples?”
Scalia meant that as a fearful warning, but it turns out that his prediction can only be seen as correct, as this week’s rulings show. And again this time, the most strident conservative voice on the Supreme Court is forecasting the same kind of result, in this case as it relates to the 35 states that prohibit same-sex marriage in their constitutions or state laws.
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote in his DOMA dissent.
In his majority opinion, Justice Anthony Kennedy did not use the phrase “enemy of human decency.” But he wrote that DOMA “places same-sex couples in an unstable position of being in a second-tier marriage” and “humiliates tens of thousands of children now being raised by same-sex couples.”
The law’s “principal purpose is to impose inequality,” Justice Kennedy wrote, and he said it had been motivated by “a bare congressional desire to harm a politically unpopular group.”
Such language, writes Dominic Perella, a Washington lawyer who has argued many cases before federal courts, “draws a detailed road map for courts to hold that same-sex marriage is a constitutional right nationwide.”
Beyond invalidating DOMA, Mr. Perella writes in a column for MSNBC, “Justice Kennedy’s majority opinion went much further — it offered passage after passage that reads like it was lifted straight from an opinion holding that same-sex marriage is a constitutional right.”
Jonathan Rauch of the Brookings Institution doesn’t go that far, but he sees something very consequential about the court’s decisions in DOMA and California’s Prop. 8 in any case. “The rulings will have a modest effect on legal doctrine but a major effect on cultural momentum,” he writes.
“As a practical matter, although not doctrinally, the court seems to imply that a law discriminating against gays — whether by excluding them from marriage or, implicitly, by doing something else — is presumed guilty of being based on animus until proven innocent, and so its constitutionality is going to be suspect,” Mr. Rauch writes.
“California… is a big change all by itself,” he writes. “The state is so big that it takes the percentage of Americans living in gay-marriage states up to 30 percent, from 18 percent. Soon, when Illinois or a few other states come in, more than a third of the country, by population, will allow gay marriage. If that is not mainstream, nothing is.”
Conservative columnist Charles Krauthammer of the Washington Post foresees the same eventual outcome.
In a column this week about DOMA headlined “Nationalized gay marriage, now inevitable,” Mr. Krauthammer writes: “If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place? Which is exactly where the majority’s second rationale leads — nationalizing gay marriage…”
“This is certainly why David Boies, the lead attorney in the companion Proposition 8 case, was so jubilant when he came out onto the courthouse steps after the ruling,” Krauthammer writes.
“He understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.”
Although it could have waited up to 25 days, the Ninth U.S. Circuit Court of Appeals on Friday lifted its hold on gay marriages in California while the U.S. Supreme Court considered the case. Within minutes officials were performing same-sex marriages in San Francisco, Los Angeles, and other cities and towns around the state.