In the short term, the Supreme Court’s decisions on same-sex marriage have set the stage for escalation of the political struggle on this issue at the state level. In the slightly longer term, gay rights advocates will double their efforts to get the court to say that there is a constitutional right to gay marriage.
But on June 26, the Supreme Court only said the federal government may not deny marriage-related federal benefits to legally married same-sex couples under a 1996 law called the Defense of Marriage Act (U.S. v. Windsor). It also let stand — on procedural grounds and without ruling on the merits — a lower court decision overturning a voter initiative called Proposition 8 against gay marriage in California (Hollingsworth v. Perry).
|Archbishop Salvatore Cordileone of San Francisco, chair of the bishops’ subcommittee for the defense of marriage.
The vote in both cases was 5-4, but the justices lined up somewhat differently in each.
These were indeed victories for gay rights campaigners but, contrary to media hype, limited ones. Chief Justice John Roberts underlined that in his majority opinion in Perry: “We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us.”
The fight continues — in the states, for now.
Same-sex marriage is currently recognized in 12 states, plus the District of Columbia, with California presumably soon to join the list. Several others appear to be moving that way. The Human Rights Campaign, a prominent gay rights organization, calls Illinois, Nevada, New Jersey, Hawaii and Oregon “in play.”
But legalization nationwide is far from assured. Thirty states have constitutional amendments barring same-sex marriage, and public opinion in large sections of the country is strongly opposed.
The regional character of this split is apparent in the fact that same-sex marriage has 62 percent support in New England, where all of the states accept gay unions, but is rejected by 56 percent of people in the Central South states including Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee and Texas. The numbers come from the Pew Research Center.
In religious terms, support ranges from a high of about 80 percent among Jews and people of no religion to a low of around 30 percent among white evangelical Protestants. Support among all Catholics is around 60 percent, with non-practicing Catholics the most approving.
Although some Catholic voices will continue to be raised on behalf of gay marriage in the struggle ahead, the American bishops oppose it as a threat to traditional marriage and family life, including the welfare of children (see sidebar).
In opposing gay marriage, the bishops have the support of Pope Francis. When the national legislature of Argentina was considering legalization in 2010, then-Cardinal Jorge Mario Bergoglio of Buenos Aires called same-sex marriage an “anthropologic regression” and a “weakening” of traditional marriage.
But the legislature voted for legalization, and the president of Argentina signed it into law.
What the future holds
While the Supreme Court stopped far short of anything so sweeping as that, President Barack Obama welcomed its action as “a victory for equal treatment under the law.” The president last year declared his support for gay marriage after several years of what he called “evolving” on the issue.
Along with the unusual step of refusing to defend the federal Defense of Marriage Act before the Supreme Court, the Justice Department asked the court to overturn Proposition 8. In light of the DOMA decision, Obama must decide whether and how to provide federal benefits to same-sex couples married in states that allow gay marriage but living in states that don’t.
Obama also could move the Supreme Court further toward constitutional endorsement of gay marriage when and if he has a chance to nominate more justices. His first two choices, Sonia Sotomayor and Elena Kagan, both voted against DOMA.
As matters stand, the justices’ various opinions in the cases decided June 26 contain plenty of language allowing the court to decide in either direction — on behalf of states’ rights or on behalf of full-blown constitutional support of gay marriage — next time the issue comes before it.
Threat to religious liberty
The U.S. Conference of Catholic Bishops was one of the many groups filing amicus briefs in the cases. The bishops called it reasonable for government to give special standing to heterosexual marriage in view of “the unique capacity for reproduction and the unique value of homes with a mother and father.”
The Supreme Court’s rulings coincided with the second annual “Fortnight for Freedom” sponsored by the bishops June 21-July 4 as an occasion for religious exercises and educational programs concerning the “many current challenges to religious liberty.”
Besides the Obama administration’s much-publicized mandate requiring employers with moral objections to provide coverage for contraceptives and abortifacient drugs in employee health plans, the challenges were said to include efforts aimed at “redefining marriage” — the gay marriage campaign, that is. The bishops’ conference cited instances in which states that recognize same-sex marriage have compelled notaries, business enterprises and even religious institutions with conscientious objections to fall in line.
Russell Shaw is an OSV contributing editor.