A turning point on gay marriage

What happened

The Supreme Court struck a historic blow in favor of gay rights this week, nullifying a federal law that defined marriage as a union between a man and a woman, and letting stand a ruling permitting same-sex marriage in California. In a bitterly divided 5–4 ruling, frequent swing vote Justice Anthony Kennedy joined the court’s liberal wing to strike down parts of the Defense of Marriage Act (DOMA) as unconstitutional under the equal protection clause. The ruling means that the federal government must recognize gay marriage in the 12 states where it is currently legal, allowing same-sex married couples to file joint tax returns and receive federal benefits linked to marriage status. In his majority opinion, Kennedy wrote that the 1996 law was motivated by a “congressional desire to harm a politically unpopular group,” and improperly undermined a state’s decision to extend “the recognition, dignity, and protection” of the marriage contract to same-sex couples. In his acerbic dissent, Justice Antonin Scalia said the “jaw-dropping” ruling was an outrageous exercise in judicial activism, and would inevitably be used to attack every “state law restricting marriage to its traditional definition.”

In the California case, the court ruled 5–4 that proponents of Proposition 8—a referendum that banned gay marriage in California—had no legal standing to challenge a lower federal court decision. That decision had voided Prop. 8 as unconstitutional. So the court decided, in effect, to reinstate same-sex marriage in California, without taking on the broader question of whether 37 other state laws banning gay marriage are constitutional.

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What the editorials said

The Supreme Court has “placed itself on the right side of history,” said The Kansas City Star. Striking down the “noxious” Defense of Marriage Act entitles legally married gay couples to all the benefits their heterosexual counterparts enjoy, from tax breaks to military and retirement benefits. But the court “missed a historic chance” to establish a nationwide right for gay people to marry, said The New York Times. Perhaps the court thought that “the country is not ready,” but “the momentum for marriage equality seems unstoppable.”

The California decision does mean the “state-by-state ground war on same-sex marriage will go on,” said USA Today. But the court acted wisely in going slowly. “Leaping too far ahead of public opinion” could cause an ugly and prolonged backlash, like that triggered by Roe v. Wade. This journey may be bumpy and slow, but rest assured the court will eventually “take a firmer grip on the controls.”

What the columnists said

Let the lawsuits begin, said Richard Socarides in NewYorker.com. Although the court’s punt on Prop. 8 “may be seen as somewhat of a disappointment,” the court’s establishment of an “equal-protection test” for DOMA will be an “important precedent” for challengers of state laws banning same-sex marriage. In the “ringing language of equality,” Justice Kennedy has stated it’s unconstitutional to treat gay people as second-class citizens simply because of “animus” against them, said Greg Sargent in WashingtonPost.com. That provides “a whole new legal framework” to challenge state laws, which are now “on the path to extinction around the country.”

The fight isn’t over yet, said Ryan T. Anderson in NationalReview.com. The court deliberately chose not to create a “right to the definition of marriage” in California, meaning that conservatives can still protect the true, traditional meaning of marriage at the ballot box. Let’s face it—the Right has lost this battle, said Jonathan S. Tobin in CommentaryMagazine.com. In less than two decades, there’s been a “fundamental shift in American culture” in which gay people and gay marriage have become normalized. Gay marriage advocates “won the culture war,” which is why they’re now winning the legal war.

The question now is how long it will take for the final, breakthrough ruling, said Gabriel Arana in Prospect.org. History suggests that the Supreme Court often takes decades to complete such tectonic shifts. “But with public opinion on gay rights evolving at breakneck speed,” the last barriers to gay marriage may fall in a matter of years.