Defense of change

It seems inconceivable that the nation’s highest court of even a decade ago would have declared the Defense of Marriage Act unconstitutional and opened the door for federal authorities to recognize gay marriages approved in states where gay marriage had been legalized.

The U.S. Supreme Court did just that Wednesday. And, to add an exclamation point to declaring DOMA unconstitutional, it effectively allowed gay marriage to become legal in California.

Of course, there wasn’t a single state in the country that allowed gay marriage a decade ago. Massachusetts would become the first in 2004. Today, a dozen states and the District of Columbia have legalized gay marriage, and many more have approved civil unions, as Colorado did this year.

The public, politicians and now the nation’s highest court have very quickly come to accept, if not embrace, gay marriage. Even some gay-rights advocates were surprised.

As The New York Times reported Wednesday, there was a lot of anxiety among gay leaders just five years ago, when some groups began pushing the issue toward the Supreme Court. There was fear that it might set back the cause of gay rights.

“Things are dramatically different today,” Chad H. Griffin, president of the Human Rights Campaign told the Times.

Public views and political reality are dramatically different than they were a decade ago, or in 1996, when DOMA was passed with broad support in Congress and signed into law by a Democratic president. And what a difference from 21 years ago in this state, when Colorado earned the nickname “the hate state” for passing a constitutional amendment that explicitly denied equal protection under the law to gays and lesbians.

The fact that the Supreme Court recognized these changing attitudes, and acted accordingly — just as it did Tuesday in recognizing the changing political landscape with respect to the Voting Rights Act — is evidence of a court made of thoughtful, intelligent justices, not people hidebound by precedent.

After all, if the Supreme Court never changed its view from earlier decisions, slavery and Jim Crow would still be law.

Furthermore, it’s hard to justify support for DOMA when, as as Justice Anthony Kennedy noted in writing the opinion for the majority, “DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages.”

Of course, the decision was not unanimous. On the DOMA case, it was the typical 4-4 conservative-liberal split, with Kennedy acting as the swing vote against upholding the law.

The vote refusing to hear the merits of the case on California’s Proposition 8, which was declared unconstitutional by a federal appeals court, was also 5-4. But in this case, some of the liberals supported Chief Justice John Roberts, who said the Supreme Court had no business taking up a citizens initiative that the state of California refused to defend.

We continue to believe that states should get out of the business of sanctioning marriage, leaving that to religious institutions while states authorize civil unions between heterosexuals or homosexuals. Nevertheless, Wednesday’s rulings were great victories for gays and lesbians, and official judicial recognition that, on this issue, the times they are a changin’.


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This week, our Supreme Court selectively and inconsistently applied its prudential “standing” doctrine to issue four “landmark” decisions – three of which incrementally advanced our Nation toward “a more perfect union”.

On Monday, having accepted the complaint of an academically unqualified plaintiff, it ruled that “affirmative action” admissions criteria at public universities require “strict scrutiny” – proof that considering race as a factor in admitting students is both “narrowly tailored” and the “least restrictive” way to further “a compelling governmental interest” (i.e., student body diversity).

On Tuesday, it disingenuously departed from well-established precedent by gratuitously granting “standing” to another dubious plaintiff that had not exhausted available remedies under the Voting Rights Action of 1965 (“VRA”) and by substituting its factual judgment for that of Congress.  By eviscerating the VRA’s “pre-clearance” requirement, the Court has reopened our elections to the chicanery of state/local authorities seeking to perpetuate “white” political power by denying minority voters “equal protection under the laws”.

On Wednesday, it ruled that the “one man, one woman” provision of the 1996 Defense of Marriage Act (“DOMA”) violates the Fifth and Fourteenth Amendments by needlessly discriminating against same-sex couples whose marriages are legally recognized in any of the several states.

Also on Wednesday, it held that proponents of California’s Mormon-backed “one man, one woman” Proposition 8 lacked legal “standing” to defend its constitutionality because – contrary to oft-repeated religiously-based arguments—“same-sex marriage” harms no one (nor undermines “traditional marriage”), much less “concretely injured” them.

In 2007, the walls of our public library were desecrated by religiously-motivated anti-gay placards – quoting Leviticus to virulently disparage LGBT families.  The Supreme Court has now disconnected the sacramental traditions of heterosexual (only) marriages from the constitutional privileges and immunities to which all citizens are equally entitled.

Thus, just as we now have a bright new public library, so too dawns a bright “new day” for gay rights.

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