The New Yorker
by Jeffrey Toobin April 1, 2013
In 2003, the Supreme Court decided that gay people could no longer be thrown in prison for having consensual sex. Specifically, Justice Anthony Kennedy’s opinion, in Lawrence v. Texas, declared that Texas’s anti-sodomy law “demeans the lives of homosexual persons” and violated the right to liberty guaranteed by the Fourteenth Amendment. But Kennedy was careful to describe the limits of the Court’s holding. He wrote that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In other words, in Kennedy’s telling, Lawrence v. Texas was not about same-sex marriage.
To which Justice Antonin Scalia responded, in a dissenting opinion, “Do not believe it.” He explained:
If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?
What, indeed? A decade later, it’s clear that Scalia was right. Once a society decides that the law must treat a group of people equally in one area of life, it becomes harder—and, eventually, impossible—to justify discriminating against them in others. If gay people can’t be prosecuted for being gay, then they shouldn’t be fired for being gay, either. If they can’t be fired, then they shouldn’t be denied custody of children. And so on, to the issue of marriage. Each of these steps is incomplete under current law, as well as in the real world, but the direction they are taking is unmistakable. This week, we will begin to find out whether the Justices will impede or accelerate that process. But, at this point, not even the Supreme Court can reverse the march toward equality.
The Court will hear two cases. The first weighs the constitutionality of Proposition 8, the measure passed by voters in California that ended the state’s brief experiment with marriage equality; the second is a challenge to the exquisitely ill-named Defense of Marriage Act, the 1996 law that bars the federal government from recognizing same-sex marriages even in states where they are legal. The two cases present variations on the same fundamental question: Is there any circumstance in which the state can deny gay people benefits that are granted to straight citizens?
The litigation process has served the useful purpose of airing the rationalizations for discriminating against homosexuals. There are really only two reasons that gay marriage is still illegal in more than three-quarters of the country: that’s the way it has always been; and the very idea of same-sex marriage makes some people, well, uncomfortable. But courts, even the current Supreme Court, usually require that laws be justified by something more than tradition and bigotry.
The Obama Administration declined to defend the constitutionality of DOMA, so congressional Republicans gave that task to Paul Clement, who was the Solicitor General during the Administration of George W. Bush. Clement has done his best. “Many states have chosen to retain the traditional definition because of the intrinsic connection between marriage and children,” he wrote in his brief, and this may be true, at least in part. But, since there are many married straight people who do not have children (and many unmarried gay people who do), Clement must know that the argument is not likely to be a winning one. So he has come up with this: “The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples—namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies.” Even after repeated readings, the sentence is baffling. Donald B. Verrilli, Jr., the current Solicitor General, understated matters by saying that justifications like that one for “the institution of marriage would hardly be recognizable to most of its participants.”
This floundering by opponents of same-sex marriage, along with dramatic changes in public opinion on the subject, has led to euphoria among some supporters. It’s true that, by the standards of most American social movements, the gay-rights cause has made an enormous amount of progress in a short time. Nine states and the District of Columbia have marriage equality; Illinois and Rhode Island are on deck. A bill in Congress to overturn DOMA passed the Senate Judiciary Committee and has a hundred and sixty co-sponsors in the House. All major polls now show that solid majorities of Americans support marriage equality, and, according to one recent survey, eighty-three per cent believe that same-sex marriage will become legal nationwide in the next decade. Even some Republican elected officials are starting to come around, although that group appears to be limited, at the moment, to people like Senator Rob Portman, of Ohio, who have openly gay people in their immediate families.
Still, the stakes in the two cases remain huge. Edith Windsor, the eighty-three-year-old plaintiff in the DOMA case, had to pay three hundred and sixty-three thousand dollars in extra taxes after her wife died, because, under the law, the federal government did not recognize their marriage. DOMA also penalizes gay people by preventing them from receiving Social Security survivors’ benefits, filing joint federal tax returns, obtaining green cards for their spouses, and enjoying hundreds of other rights and benefits. And, in addition to these practical considerations, there is the matter of the Supreme Court’s acknowledging the capacity of gay people for commitment and love. It’s important that the Justices decide these two cases the right way.
It’s just not as important as it once seemed. When Theodore B. Olson and David Boies, the lead lawyers in the Prop 8 case, filed their lawsuit, in 2009, it appeared to many informed observers that they were taking a foolhardy risk. At the time, gay-rights organizations had been following a cautious, state-by-state approach, and it seemed that an adverse decision in a major federal lawsuit could set back the cause of same-sex marriage for a generation. But, whatever the Justices do, that’s not going to happen. The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it’s never going back to the way it was. Though the battles continue, the war is over. ♦