Commentary Magazine


Topic: Proposition 8

On DOMA, SCOTUS Follows the Culture

Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

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Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

While Justice Kennedy derided the willingness of Congress to step into what most Americans consider a point about morality and to, in effect, discriminate against gay couples, the question of whether such discrimination is legal or not has always tended to be based on popular opinion as much as law. This is a key point because as Justice Antonin Scalia pointed out in his dissent in the 5-4 vote on DOMA, Congress has always considered itself to have the right to legislate on morality. But that is only true so long as there is a consensus about what is moral and what is not. In the 1990s, the long held consensus that the traditional definition of marriage is the only one the government should recognize still held. If that is no longer true, and it is obvious that this is the case, then it is inevitable that the law will follow the culture.

For example, even today as much of America celebrates the newly enshrined concept of marriage equality, few seem to have any problem prohibiting two or three women from marrying the same man and in treating such “Big Love” marriages as being beyond the pale of the law’s protection. Under the logic of the DOMA decision, that ought not to be true. But even to ask the advocates of gay marriage if their victory should extend to polygamous spouses would probably be viewed as a provocation rather than a reasonable question. Perhaps that will no longer be true in a generation, but unless the entertainment industry is prepared to start including more “plural marriage” characters in its situation comedies, I wouldn’t bet on it.

The defenders of traditional marriage can console themselves that the majority in the DOMA case did not overreach in the manner of the authors of the Roe v. Wade decision and have not attempted to mandate gay marriage throughout the country. They have wisely left the decision about whether to legalize such unions to the states. Doing so reaffirms the basic concepts of federalism and allows those states that refuse to accept gay marriage to go on doing so. That may change if Hillary Clinton is elected president in 2016 and is able to replace some of the court’s conservatives with liberals. At that point the court may strike down all state laws or constitutional amendments that do not conform to this standard, which is something they refused to do in the California Proposition 8 case today where they merely said the plaintiffs had no standing to defend the statute.

But the point here is that gay marriage advocates won the legal war because they first won the culture war. Those conservatives who hope to avoid the same outcome on other issues would do well to remember that. 

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The Stunning Public Shift on Same-Sex Marriage

The velocity of change in public attitudes on same-sex marriage–from being unimaginable not long ago to being fairly commonplace today and probably dominant tomorrow–is extraordinary, even unprecedented.

One obvious indicator of that is public opinion polls; another is the number of elected officials who are reversing their past position on gay marriage. We’re now at the point where embracing federalism–letting states rather than the Supreme Court decide the issue–defines the most reliably conservative position. Republicans who support same-sex marriage, from former Vice President Richard Cheney to Senator Rob Portman, (thankfully) aren’t in danger of excommunication. In fact, I know of almost no critic of gay marriage who relishes talking about the issue. 

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The velocity of change in public attitudes on same-sex marriage–from being unimaginable not long ago to being fairly commonplace today and probably dominant tomorrow–is extraordinary, even unprecedented.

One obvious indicator of that is public opinion polls; another is the number of elected officials who are reversing their past position on gay marriage. We’re now at the point where embracing federalism–letting states rather than the Supreme Court decide the issue–defines the most reliably conservative position. Republicans who support same-sex marriage, from former Vice President Richard Cheney to Senator Rob Portman, (thankfully) aren’t in danger of excommunication. In fact, I know of almost no critic of gay marriage who relishes talking about the issue. 

What explains this seismic shift? Books will be written examining this question. My own sense, more impressionistic than based on careful research, is that several factors are responsible for it. Changing mores is part of it, as is marriage having been delinked from certain past teleological assumptions. So are family members and friendships with people who have come out as gay. Much of it is generational, with huge majorities of young people supportive of gay marriage. And it’s undeniably true, I think, that the arguments advanced by people like Jonathan Rauch and Andrew Sullivan have carried the day, at least if you judge winning by persuading people to agree with your point of view.

I also believe that a central explanation for what we’re witnessing–and one related to the ingenuity and power of the Sullivan and Rauch arguments–is that they helped reposition the gay rights movement from libertine to conservative, from gays being a threat to our social order and institutions to wanting to be a respected part of them. They didn’t want to uproot marriage, they wanted to share in its blessings.

Once that shift occurred–once many Americans believed that the gay movement was de-radicalized and domesticated–much of the opposition to gay marriage began to dissipate. Not all at once, of course, and many Americans still oppose same sex marriage. (Ron Brownstein argues that that for the near future, “the nation appears locked onto a trajectory in which almost all reliably blue states will establish gay marriage (or civil unions) and possibly not a single reliably red state will follow.”) But because of the generational differences when it comes to gay marriage, there is little doubt where this issue is headed, regardless of what the Supreme Court decides.  

There will still be important issues to sort through, including how religious institutions and people of faith who oppose same sex marriage are treated. For example, will orthodox Christian churches and educational institutions, if deemed to be bigoted based on their opposition to gay marriage or homosexual conduct, eventually be treated in law like racist organizations? Will mainstream evangelical colleges one day be dealt with in the same way we did Bob Jones University? (In the early 1980s Bob Jones University lost its tax-exempt status because of its ban on interracial dating.) That may not happen. But if it were to occur, the debate could quickly shift in a different direction, from being seen by many as a celebration of individual rights to one that is viewed as an attack on religious liberty. 

For now, though, what has occurred is a stunning social shift, quite unlike anything we’ve ever seen.

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The Court, Marriage, and Federal Power

After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.

But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.

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After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.

But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.

Let’s first acknowledge that the culture war about homosexuality has been convincingly won by gays. Twenty years ago the already widespread acceptance of openly gay figures in pop culture had not transferred to the political sphere. Indeed, as recently as 2008, a staunch liberal like Barack Obama had to swear his opposition to gay marriage in order to be considered a mainstream political figure. But that is no longer the case. While national attitudes are still far from unanimous, anyone who would argue that the trend toward its acceptance is not accelerating to the point where opponents are becoming a beleaguered minority has not been paying attention. While defenders of traditional marriage can still put forward coherent arguments about the assault on the institution, appeals to the basic libertarian instincts of most Americans are winning the day for the pro-gay marriage point of view. Nor do the claims that gays marrying would materially damage straight marriages seem to have much traction. A political environment in which most people see the issue as one of equal rights for all citizens, as opposed to one about the distortion of the meaning of an institution to suit the whims of a minority, is not one that is sustainable for gay marriage opponents.

That is exactly why the courts can and should defer to the legislative process to sort out this issue.

It may be that the argument put forward that denying gay marriage is a violation of the Constitution’s 14th Amendment equal protection guarantees is accepted by most Americans. If the high court were to unilaterally rewrite the meaning of the Constitution in that way, it might please not only the media and the pop culture world but perhaps a majority of the country. But such a broad stroke would create other problems that are best avoided.

While seemingly harmless, the rush to codify gay marriage as a constitutional right contains within it the possibility of creating a genuine danger of discrimination against religious faiths that oppose the idea. Catholic institutions (already under assault from federal mandates on reproductive issues) as well as Orthodox Jews, the Greek Orthodox and a host of evangelical Protestant denominations could be put in the awkward position of not just being labeled as bigots but as possible law breakers because of their beliefs due to new requirements to recognize and grant benefits due to spouses. If there is to be a right of gay marriage it must be enacted with stipulations that exempt religious institutions as well as clergy from any repercussions from a refusal to go along with the new consensus. That is the sort of sensible compromise that is far more likely to be brought about by the legislative process than a top-down court ruling.

Gay marriage advocates argue in reply that civil rights cannot be subject to the majority vote but rather must be protected by the law regardless of the whims of the mob, as the founding fathers would have understood the issue. They point to the struggle for racial equality in this country in which the courts played a necessary role in both protecting liberty and in prodding the legislatures and public opinion to catch up with what was right. But however much this issue is represented as one that can only be understood as a question of equality, the creation of a new right via the redefinition of an institution is not quite the same thing as righting the wrongs of slavery. The pro-gay marriage side must understand that it is asking the federal government to go into uncharted waters in that respect, as well as by taking this issue away from local institutions that have always governed interactions between the state and married couples.

Change is best achieved when it is accomplished via the democratic process and with respect for the rights of individual states to sort these things out according to the beliefs of its citizens.

If gay marriage advocates are confident, as they probably should be, that time and public opinion are on their side, then they should concentrate their efforts on winning their battle in the legislatures. That is something they have been doing with increasing success in recent years. Were the court to short-circuit that struggle it would set off a new and bitter struggle over the issue that would distort our politics and roil the culture for years and perhaps decades to come.

While the temptation to enact an all-or-nothing proposition in response to the baffling choices before it may entice some of the justices, they should listen to the voices of caution and avoid such a solution. That might mean punting on the California case, in which it can be argued that Prop 8’s supporters don’t have the standing to argue against its invalidation by state courts, as well as by striking down DOMA as a wrongful federal interference with a state matter.

That would disappoint conservatives who hope the court might save the country from the drive to enshrine gay marriage in various states. But in these cases, as in so many other issues, the greater wisdom always rests in restraining the power of the federal government to impose its will on the states and the people. If America is truly “evolving”—as liberals would have it—toward acceptance of gay marriage, then let it do so by the democratic process and not by a court eager to stay ahead of or get out of the way of public opinion.

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