Wednesday, June 26, 2013

The Supreme Court strikes down DOMA and lets Proposition 8 expire

          (The legal progress of same-sex marriage since 1970, from here.)

This has been a busy and complicated week for the Supreme Court, with two very significant 5-4 decisions.

On Tuesday the 5 Republican Justices struck a blow against democracy by gutting a key section of the Voting Rights Act.  (This was done cleverly, since they didn't straightforwardly throw out the protections embodied in the VRA, which was overwhelmingly re-authorized by Congress as recently as 2006, but issued a less obviously drastic ruling that effectively crippled those protections.)

Then today a 5-4 majority voted to invalidate the so-called Defense of Marriage Act, which barred federal recognition for same-sex marriages performed in states that allow them.  With a slightly different line-up of votes, the Court also declined to overturn a California court ruling against Proposition 8, which had banned gay marriage in the state.  These rulings add up to a major victory for the acceptance and institutionalization of marriage equality.  And, more generally, they probably represent a significant milestone in the long-term process by which the rejection of bigotry and discrimination against gays and lesbians is becoming part of the mainstream consensus.  In that respect, the transformation of public attitudes and legal norms over the past generation, in the US as well as other western societies, has been remarkable—one might almost say revolutionary.  I would describe this, without irony or equivocation, as a case of genuine moral progress.

In both of those 5-4 Supreme Court decisions, as in many other recent decisions, Justice Anthony Kennedy proved to be the swing vote.  The reasoning behind Kennedy's position in the DOMA case raises interesting issues (which have already been worked over by a lot of analysts), and perhaps I'll add my own two cents to that discussion sometime soon.

For the moment, I just want to quote from the reactions of Andrew Sullivan, an early and persistent advocate of putting marriage equality (which he presented as a fundamentally conservative reform project) on the agenda and pursuing it as a central political goal.  The idea looked quixotic at the beginning, and was derided and attacked from many ideological directions, but in the end it seems to have worked.  Sullivan deserves to feel some special satisfaction today:
Some final thoughts after so many years of so many thoughts. Marriage is not a political act; it’s a human one. It is based on love, before it is rooted in law. Same-sex marriages have always existed because the human heart has always existed in complicated, beautiful and strange ways. But to have them recognized by the wider community, protected from vengeful relatives, preserved in times of illness and death, and elevated as a responsible, adult and equal contribution to our common good is a huge moment in human consciousness. It has happened elsewhere. But here in America, the debate was the most profound, lengthy and impassioned. This country’s democratic institutions made this a tough road but thereby also gave us the chance and time to persuade the country, which we did. I understand and respect those who in good conscience fought this tooth and nail. I am saddened by how many failed to see past elaborate, ancient codes of conduct toward the ultimate good of equal human dignity. I am reminded of the courage of a man like Evan Wolfson who had the vision and determination to change the world.

But this happened the right way – from the ground up, with argument, with lawsuits, with cultural change, with individual courage. I remember being told in the very early 1990s that America was far too bigoted a place to allow marriage equality – just as I was told in 2007 that America was far too bigoted a place to elect a black president. I believed neither proposition, perhaps because I love this country so much I knew it would eventually get there. I trusted the system. And it worked. From 1989 (when I wrote the first case for this on the cover of a national magazine) to today is less than a quarter century. Amazing, when you think of how long it took for humanity to even think about this deep wound in the human psyche.  [....]
A good day for all of us.

—Jeff Weintraub

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