In Court Victories for Gay Marriage, Signs of the Longer War to Come
When word reached a young Hunter S. Thompson fifty years ago in his snowy cabin in Colorado that John F. Kennedy had been shot earlier that day in Dallas, he lashed out in an angry letter to a friend. “No matter what, today is the end of an era. No more fair play,” he wrote. “From now on it is dirty pool and judo in the clinches. The savage nuts have shattered the great myth of American decency. They can count me in – I feel ready for a dirty game.”
Wednesday’s vividly written and sometimes fantastically angry opinions by Justices of the Supreme Court may not have resorted to gonzo language to summon partisans to arms in the battle over homosexuality’s place in American society, but they came very close.
Far from settling the contentious issue of gay marriage, the pair of decisions – both significant wins for gays and their supporters – virtually guarantee renewed efforts to broaden or limit gay rights. Because the cases stopped far short of establishing a federal right to marriage for same-sex couples, fighting over the issue will continue in courts, ballot boxes and legislatures throughout America, where gay marriage remains illegal in 35 states, according to the National Conference of State Legislatures.
The decisions – one a purely technical ruling that left in tact a lower court’s order that gay marriages may proceed in California and another that struck down only part of the1996 Defense of Marriage Act, which barred the federal government from recognizing same-sex marriages – did not even end the debate in federal courts.
In one of his most scathing opinions, Justice Antonin Scalia thundered his disapproval for Justice Anthony Kennedy’s opinion striking down part of DOMA, in which all four liberal justices joined. He saved special disdain for Kennedy’s final sentence, in which the majority-making swing voter asserted that no one should read the decision to suggest the court was ready to rule on the more fundamental question of whether the Constitution provides a right to gay marriage that trumps the state bans.
“It takes real cheek,” Scalia wrote, “for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
Scalia has a record of making accurate predictions along these lines. In 2003, the court issued the landmark gay rights case Lawrence v. Texas, also written by Kennedy, that made it illegal for states to criminalize homosexual conduct. In a bristling dissent read from the bench that day, Scalia predicted lawyers for a generation would be using language in Lawrence to advance arguments that gay marriage must be permitted.
He was right then and he’s likely right now. Kennedy’s opinion, despite his last-sentence disavowal, is shot through with language gay rights lawyers will read as powerful arguments that states violate the U.S. Constitution when they ban gay marriage. An example: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.”
David Boies, one of the lawyers who argued against California’s ban, said Wednesday the logic of the DOMA decision provides every reason to believe the court is ready to strike down all gay marriage bans as soon as a suitable case reaches the court.
The nation’s leading voices against gay marriage seemed to agree. The Rev. Albert Mohler, president of the Southern Baptist Theological Seminary in Louisville, told CNN the decisions “takes us right up to the brink of nationwide same-sex marriage,” adding, “I think when you look at American history, there are many dates that stand in our constitutional history as what you might call standout, red letter days. This is one of those days.”