SalemNews.com, Salem, MA

July 8, 2013

Column: Same-sex marriage and the idea of rights

Timothy Sherratt
The Salem News

---- — 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!

As a result, I think we’ll see two likely paths play out. Obviously, these two five-judge majorities differed markedly. In Perry, both liberal and conservative judges joined the chief justice in denying “standing” to Prop 8 supporters. The other four, again a mix of liberals and conservatives, would have allowed their lawsuit, which would have cleared the way to consider the constitutionality of same-sex marriage. On that question, they would have been divided, but who knows what the split would have been.

On the other hand, the judges disagreed in Windsor along conventionally ideological lines. The four liberal judges sided with Justice Kennedy, with the conservatives in opposition. Despite Kennedy’s intemperate language, the majority crafted a narrow opinion. They only struck down part of the law, confined their ruling to those states with same-sex marriage, and let stand DOMA’s provision that states may not be compelled to accept as legitimate the same-sex marriage laws of other states.

Kennedy’s ruling was not a states rights ruling, even though this avenue was open to him. After all, marriage law has been, traditionally, a state matter, not a federal one. He preferred instead to emphasize the affronted dignity of persons inconvenienced by DOMA, not the power of states to regulate marriage. Why? Affronts to individual rights resonate legally and culturally by taking aim at any government that restricts them, state or federal. If Kennedy had affirmed the right of states to shape marriage law, he would have thereby upheld the sovereign power of those 38 states that have not legalized same-sex marriage. Many of those states have enshrined the traditional one-man, one-woman definition in their constitutions.

In contrast, the chief justice acknowledged the rapid changes in public opinion over same-sex marriage, implying that state governments are competent to decide the issue for themselves. Roberts’ ruling takes the long view and hints that legislative deliberation, not judicial fiat, should hold sway.

Will Roberts’ preference for a decentralized and legislative resolution or Kennedy’s universal rights-based resolution carry the day? I can’t pretend to know. But marriage as we’ve known it has changed. Its new face is increasingly artificial and legal, and less natural and conventional.

Still, critics of these rulings are many. Former Judge Michael McConnell, for instance, thinks opposition stems “from the fear that conscientious opponents will be victimized,” and Justice Kennedy’s ill-chosen words could incite both fear and victimization.

Roman Catholic Archbishop Timothy Dolan also voiced a major criticism, that “the common good of all, especially our children, depends upon a society that strives to uphold the truth of marriage.” His is a common criticism: that gay marriage deprives children, not of personal care and affection, but of the irreplaceable contribution to their welfare and development of either mother or father.

But it is the way these decisions reflect core values of the American Constitution that gets my attention. The Constitution describes individual liberty in elaborate detail but has little to say about natural and social agencies. So, for example, by the Constitution’s logic, the environment does not possess its own integrity. No, it’s just someone’s property — which government may not seize without just compensation or due process of law.

We should not be surprised, then, to discover that tradition or convention prove no match for individual rights like equal protection. Marriage has acquired over many centuries certain features from religious understanding, tradition and convention. Marriage so understood has been enshrined in American law. But through the eyes of the Constitution, marriage is first and foremost a voluntary institution, shaped by individual choices. Protecting those choices is the top priority. It does not matter how recent the case for same-sex marriage is. The Constitutional principles invoked in support of it are immensely strong.

On same-sex marriage, the Supreme Court did not hit a grand slam last week. But keep hitting home runs and you usually win the game. Under our Constitution, tradition is tradition, but rights are trumps.

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Timothy Sherratt is a professor of political science, specializing in constitutional law, at Gordon College in Wenham. He and his family live in Rowley.