Magazine article The New Yorker

Wedding Bells

Magazine article The New Yorker

Wedding Bells

Article excerpt

In 2003, the Supreme Court decided that gay people could no longer be thrown in prison for having consensual sex. Specifically, Justice Anthony Kennedy's opinion, in Lawrence v. Texas, declared that Texas's anti-sodomy law "demeans the lives of homosexual persons" and violated the right to liberty guaranteed by the Fourteenth Amendment. But Kennedy was careful to describe the limits of the Court's holding. He wrote that the case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." In other words, in Kennedy's telling, Lawrence v. Texas was not about same-sex marriage.

To which Justice Antonin Scalia responded, in a dissenting opinion, "Do not believe it." He explained:

If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), "when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution"?

What, indeed? A decade later, it's clear that Scalia was right. Once a society decides that the law must treat a group of people equally in one area of life, it becomes harder--and, eventually, impossible--to justify discriminating against them in others. If gay people can't be prosecuted for being gay, then they shouldn't be fired for being gay, either. If they can't be fired, then they shouldn't be denied custody of children. And so on, to the issue of marriage. Each of these steps is incomplete under current law, as well as in the real world, but the direction they are taking is unmistakable. This week, we will begin to find out whether the Justices will impede or accelerate that process. But, at this point, not even the Supreme Court can reverse the march toward equality.

The Court will hear two cases. The first weighs the constitutionality of Proposition 8, the measure passed by voters in California that ended the state's brief experiment with marriage equality; the second is a challenge to the exquisitely ill-named Defense of Marriage Act, the 1996 law that bars the federal government from recognizing same-sex marriages even in states where they are legal. The two cases present variations on the same fundamental question: Is there any circumstance in which the state can deny gay people benefits that are granted to straight citizens?

The litigation process has served the useful purpose of airing the rationalizations for discriminating against homosexuals. There are really only two reasons that gay marriage is still illegal in more than three-quarters of the country: that's the way it has always been; and the very idea of same-sex marriage makes some people, well, uncomfortable. But courts, even the current Supreme Court, usually require that laws be justified by something more than tradition and bigotry.

The Obama Administration declined to defend the constitutionality of DOMA, so congressional Republicans gave that task to Paul Clement, who was the Solicitor General during the Administration of George W. Bush. Clement has done his best. "Many states have chosen to retain the traditional definition because of the intrinsic connection between marriage and children," he wrote in his brief, and this may be true, at least in part. …

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