, Salem, MA


July 8, 2013

Column: Same-sex marriage and the idea of rights

Following the Supreme Court’s decision last month in two pivotal cases, one political blogger headlined, “A home run but not a grand slam for gay marriage advocates.” I think that verdict is about right. And in the process, I suspect the institution of marriage has changed permanently.

In the first case, Hollingsworth v Perry, Chief Justice John Roberts held that private citizens who supported California’s Proposition 8 — which banned same-sex marriage but was overturned in a lower court — could not appeal that ruling. State officials declined to defend Prop 8, so private citizens tried to do so in their place. But the Supreme Court ruled they could not bring a lawsuit because they could not show a direct “injury,” and Prop 8 died.

Unlike those citizens who tried to defend Prop 8, Edith Windsor alleged a sizeable injury — $363,000 worth — and got her day in court by challenging the 1996 federal Defense of Marriage Act (DOMA).

In U.S. v Windsor, the justices overturned a key provision of DOMA, one which defined marriage as a union of one man and one woman, because it did not extend the tax and related benefits of marriage to same-sex couples. Since DOMA’s passage, several states now grant marriage licenses to same-sex couples. Windsor, as the surviving spouse of one of these marriages, sued to recover federal taxes she paid on her late spouse’s estate.

The case got plenty of attention, especially because Justice Anthony Kennedy wrote that DOMA was unconstitutional under the Fifth Amendment’s protection of a person’s liberty. Unfortunately, he did not stop there. In widely quoted lines, he accused Congress of a “bare desire to harm,” of “demeaning” the choices of married couples, and of “humiliating” the children of same-sex couples. These motivations, he alleged, constituted the core purpose and effect of DOMA — even though no states conferred such marriage rights in 1996 when DOMA was passed!

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