What a difference a year can make. When the Supreme Court on June 26, 2013, struck down the key section of the federal Defense of Marriage Act (DOMA), which barred giving federal marriage-related benefits to same-sex couples, the action correctly was seen as a huge victory for homosexual interests. But few people imagined that things would move as swiftly in the direction of same-sex marriage as they have.
As of June 10, supporters of legalized gay marriage have scored 15 victories in lower courts in the past year. While a number of these cases are being appealed, 19 states plus Washington, D.C., now allow same-sex marriage, compared with 13 at the time of the Supreme Court decision last June. It seems likely that one or more of the current cases will reach the Supreme Court in its next term.
In overturning DOMA, the court divided 5-4, with the four liberal justices plus Justice Anthony Kennedy making up the majority. In a separate case decided at the same time, a different five-justice majority declined to consider a lower court ruling overturning a ban on same-sex marriage in California. The justices didn’t rule on the merits but said they couldn’t decide the case because state officials refused to defend the ban and its supporters lacked legal standing to do so.
In his majority opinion in the DOMA case, Kennedy stressed that the ruling applied only to same-sex unions from states that recognize them as marriages. Thus the situation in states that do not recognize gay marriage was left untouched, he said.
But Justice Antonin Scalia in a scathing dissent said Kennedy’s reasoning could apply just as well to state bans on same-sex marriage as to DOMA itself.
In what defenders of traditional marriage took to be a particularly offensive passage, Kennedy asserted that the “purpose and effect” of the federal law was to “disparage and injure” gay and lesbian married couples. To that Scalia replied: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
Although DOMA was enacted by Congress in 1996 and signed into law by President Bill Clinton, the Obama administration refused to defend the law when it came before the Supreme Court. And last February, speaking for the administration, Attorney General Eric Holder announced a policy of “full and equal recognition” for same-sex marriage. Presumably, then, it will take the gay marriage side next time the issue comes before the court.
Against natural law
In decisions last year, other judges in lower federal courts have echoed Kennedy’s critique of laws upholding the unique status of man-woman marriage. One theme commonly heard has been that there is no rational basis for limiting marriage to heterosexual couples.
Defenders of traditional marriage say this is clearly not so. The case for the uniqueness of man-woman marriage rests on its grounding in two linked values necessarily absent from same-sex unions — male-female complementarity and openness to the begetting and raising of children by two parents of different sexes. From this perspective, recognizing same-sex unions as marriages undermines authentic marriage by muddying the waters on what marriage really means.
Another issue of growing concern for traditional marriage defenders is how to protect people who reject gay marriage on conscience grounds from suffering legal penalties.
In April, the Supreme Court turned down an appeal by a husband-wife wedding photography team in Albuquerque, New Mexico, whom the state human rights commission found guilty of violating New Mexico’s anti-discrimination law for refusing to photograph a lesbian couple’s wedding ceremony. The state Supreme Court upheld the commission.
Other business owners lately have found themselves in the same situation. In early June the Colorado Civil Rights Commission ruled against a bakery shop owner who refused to provide a wedding cake for a same-sex marriage.
Court of public opinion
Predictably, in view of the continuing drumbeat of gay-friendly coverage in media, public opinion on gay marriage has shifted dramatically in recent years. In a recent report, the Pew Research Center said approval of same-sex marriage had risen from 32 to 43 percent among black Protestants between 2013 and 2014. Among white mainline Protestants, the approval figure rose from 55 to 62 percent. But support remained about the same: 59 percent among people identifying themselves as Catholics, while the rate of approval among white evangelical Protestants stayed at 23 percent.
An unlikely solution
Last February, Archbishop Salvatore Cordileone of San Francisco pronounced amending the Constitution to be “the only remedy in law against this judicial activism” propelling the rush to same-sex marriage.
He made his remark in a letter to Rep. Tim Huelskamp, R-Kan., whose federal Marriage Protection Amendment is pending in the House of Representatives. When and if the Supreme Court strikes down the remaining state bans on gay marriage, Huelskamp’s amendment — or something like it — will be virtually the only way of changing the legal situation.
With the law on same-sex marriage in flux, attention increasingly is focused on the Supreme Court. Some fear it might deliver a ruling resembling its 1973 decision abruptly legalizing abortion nationwide.
“Just as Roe v. Wade mandated a constitutional right to abortion throughout the country, we now have the possibility of another bad decision mandating a constitutional change in the meaning of marriage,” said Archbishop Cordileone.
He could be right.
Russell Shaw is an OSV contributing editor.