Advocates for marriage equality won breakthrough victories in the Supreme Court on Wednesday when the court threw out a major component of the federal Defense of Marriage Act and also cleared the way for gay marriage in California.
The struggle for marriage equality has moved from the humblest grass-roots campaigning in small towns and neighborhoods around the country to the nation’s highest court. For years gay marriage advocates were wary of pressing their case in the federal courts, fearing that the conservative Supreme Court would dash their hopes. But now the Supreme Court has recognized marriage equality as a question of fundamental rights and equal protection of the law.
Vermonters have followed the unfolding of the gay marriage story with heightened interest because of the state’s pioneering role in passing the nation’s first civil unions law in 2000. The bitterness and drama of the struggle here presaged struggles in Massachusetts, California and elsewhere. Fear and love competed in the arena of Vermont’s human-scale democracy, and love won.
Other states have learned what Vermont learned. When the issue of gay marriage gains a human face, it becomes harder to resist the appeal for equality. Vermonters saw their neighbors step forth, demanding respect and fair treatment, asserting their rights with courage and dignity. It was a social movement that held to the high road, winning the respect of people who might never have seen themselves as defenders of gay rights.
That has been the story wherever the battle has been joined. Emotions run high, but the steadiness of purpose of those seeking respect for themselves and their families has had greater staying power than the sectarian claims of religious partisans or the counselors of fear.
The Supreme Court got into the act 10 years ago with its historic ruling in the Lawrence case from Texas in which it threw out laws criminalizing private homosexual conduct. In that case Justice Anthony Kennedy was the swing vote, and he wrote the decision for the majority. “The petitioners are entitled to respect for their private lives,” Kennedy wrote. “The state cannot demean their existence or control their destinies by making their private sexual conduct a crime.”
Congress passed and President Clinton signed the Defense of Marriage Act 13 years ago. The law defined marriage as strictly heterosexual and barred the federal governments from recognizing same-sex marriages or extending marriage benefits to same-sex couples. It also allowed states to refuse to recognize same-sex marriages occurring in other states.
Justice Kennedy again wrote the decision in the DOMA case. “Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,” he wrote. “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”
The ruling is significant because it is founded on the Constitution’s equal protection clauses rather than a narrower issue of state and federal rights. With Kennedy’s ruling, joined by the four liberal justices, the court has established that discrimination against same-sex couples is unconstitutional.
The California ruling was narrower in scope. A federal judge in San Francisco had found that Proposition 8, a ballot initiative banning same-sex marriage, was unconstitutional. Supporters of Proposition 8 appealed that decision, but the Supreme Court found the appellants had no legal standing to bring the appeal. Thus, the court did not go so far as to bar other states from banning same-sex marriage.
As a result of the court’s rulings, same-sex marriage is likely to resume in California shortly. Also, laws or amendments in some three dozen other states barring same-sex marriage will stand for now. With the evisceration of DOMA, spouses may not be denied Social Security, health or other benefits because they are married to someone of the same gender.
Much has happened in the nearly two decades since a dedicated group of Vermonters began to mount a campaign to secure equal rights for same-sex couples. Soon about 30 percent of Americans will live in states allowing same-sex marriage. It is a sign of how change happens and democracy works.
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