On June 26, 2013, the Supreme Court ruled 5-4 that the federal Defense of Marriage Act (DOMA) is unconstitutional. The majority opinion reads in part:
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to 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, the federal statute is in violation of the Fifth Amendment.”
It’s actually not the clearest of statements: we’d parse it as “the federal law is invalid because it tried to disparage and injure gay Americans living in states that legalized gay marriage. Those states said gay married couples had the same personhood and dignity as straight married couples. DOMA tried to displace this protection, thus violating the Fifth Amendment.”
The Fifth Amendment ensures all U.S. citizens equal protection under the law. So if a state legalizes gay marriage, that means gay marriage has the same protected status as straight marriage.
DOMA, a 1996 law, “defended” marriage by saying even if you were legally married in your state, as a gay person you were not allowed federal benefits that straight married people received, from tax exemptions to being able to receive Social Security payments when widowed to Family and Medical Leave to care for a family member. DOMA joins other examples of discrimination enshrined as law in U.S. history, taking its shameful place with Plessy v. Ferguson, the Chinese Exclusion Acts, the Indian Removal Act, and others. Conservative politicians who decried “big government” and sought to strip the federal government of every power suddenly rushed to pass a federal law making gay marriage second-class marriage. Marriage laws had always been the exclusive domain of the states, but as states began to legalize marriage for gay Americans, these politicians had a change of heart regarding big federal government and pushed DOMA through to “defend” “normal” marriage.
As is usually the case in the U.S., a radical minority got their way through activism, but in doing so aroused the suspicion and then resentment of the majority of Americans, who saw that the principles of liberty and justice for all were being overthrown. Many married gay people took their protests to local courts, and appealed up the hierarchy until at last one reached the Supreme Court, where justice was done.
Not everyone was pleased. Predictably, Justice Antonin Scalia dissented, on dubious and irritating grounds:
“In the majority’s telling, this story is black-and-white: hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. …the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”
The truth is indeed more complicated than describing DOMA supporters as “hating their neighbor”. Many DOMA supporters act out of fear and ignorance rather than hate. But fear and ignorance open a wide door for hate, and that’s the problem with choosing to sympathize more with the fearful and ignorant rather than the supporters of blind justice.
Scalia went on to say that the Constitution “neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.” The majority’s opinion, he wrote, declares “open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.”
This is beyond specious, and we have a feeling Justice Scalia is well-aware of that. No, the original Constitution does not require or forbid us to approve of same-sex marriage, just as it does not require us to make a judgment on slavery, racial segregation, or the collection of federal income tax. The Constitution does not address specific items like this; it provides a general framework of justice and equal opportunity that we are allowed to amend as particular cases come up that challenge that framework. The Constitution does not ask anyone to “approve” of anything. It asks U.S. citizens to uphold the founding principles of this nation, applying those general principles as described in the Constitution to whatever specific cases may arise in our own times. Perhaps there are Americans who would have described “whites only” and “coloreds only” facilities not as unjust but as “mean-spirited”. Those people would never have brought Brown v. Board to court. It’s those Americans who saw racial segregation as a violation of the Equal Protection clause of the Fourteenth Amendment who brought that case, and it’s the same type of American who brought the DOMA case—Americans who want being American to mean something; to represent a high standard of justice.
Scalia almost approaches a justifiable complaint in one way: many news commentators we heard reporting this case claimed that public opinion, having swung so profoundly from homophobia to support or at least acceptance of homosexuality, must have an impact on the Justices’ decision. This is untrue, and a very un-American attitude. As we point out in many posts, notably “The judiciary saves us from the tyranny of the majority”, the Courts are supposed to ignore public opinion. If they did not, we would most likely not be enjoying Brown v. Board and other Supreme Court rulings that went against prejudiced majority opinion. Most Americans were not completely supportive of Miranda v. Arizona—why should someone the police “know” committed a crime be allowed to have a lawyer present before they are questioned? Most Americans did not support Tinker v. Des Moines—why should kids in public schools be allowed to wear political protest items of clothing? Majority opinion is not meant to be a guide for the courts because the majority often tyrannize the minority, depriving them of their civil rights simply because they can. The courts protect that minority population of Americans who want women to be able to vote, schools to be desegregated, or poll taxes and other barriers to voting to be abolished.
Once the minority wins out in the name of justice, the majority usually goes along within a generation or two, and we have an improved nation. In Windsor v. United States, the June 2013 case ending DOMA, we may have less of a hill to climb in that respect. For now, we can all take pride in our system and let this case remind us that while our journey toward upholding our founding principles is never on a clear upward trajectory, and rulings like the one striking down the key component of the Voting Rights Act of 1965, also delivered June 2013, will happen, we must remain determined to keep fighting for justice. We, like Edith Windsor, must maintain our confidence that in the United States, justice will eventually be done—or else it won’t be.
The Historic Present 