A Postscript on the DOMA Decision

As we noted earlier ("Redeeming the Culture") the U.S. Supreme Court recently handed down its decisions on a pair of same-sex marriage cases. In one of them, United States v. Windsor, the Court struck down provisions in the federal Defense of Marriage Act (DOMA) that defined marriage, for purposes of federal benefits, as a union between one man and one woman. Under the Court's ruling the federal government will now be obliged to recognized same-sex marriages that were solemnized in states where such unions are legal.
    When one reads the fine print of the Court's opinion a chilling specter arises. Justice Kennedy, writing for

Justice Anthony M. Kennedy

the majority, reviewed the legislative history of the statute, and noted in particular that the House of Representatives, in passing the bill, had declared that the legislation expresses "both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality" (H.R. Rep. No. 104-664, p.16). Justice Kennedy cited this as "evidence of a law having the purpose and effect of disapproval of that class [i.e. gay couples]. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages" (opinion, pp. 20-21). He went on to say that "the principal purpose and the necessary effect of the law are to demean those persons who are in a lawful same-sex marriage." He declared that the Fifth Amendment to the U.S. Constitution "withdraws from Government the power to degrade or demean in this way this law does . . ." (ibid., p. 25. What Justice Kennedy is evidently referring to here is a legal concept known as "substantive due process"). Justice Kennedy concluded by saying: "DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriage of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity" (pp. 25-26).
    What Justice Kennedy has done, in effect, is to equate "traditional (especially Judeo-Christian) morality" with a purpose to "degrade," "demean," and "disparage" one class of citizens, and to treat their marriages as "less worthy" than others. Morality, in other words, is tantamount to bigotry.
    Justices Scalia and Alito both delivered scathing dissents. Justice Scalia, in particular, noted a disturbing implication of the Court's decision. Even though Justice Kennedy had concluded his opinion by saying "This opinion and its holding are confined to those lawful marriages," i.e., those that have been declared legal by the states in which they were made, Justice Scalia observed "How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status" (dissenting opinion, p. 23). In other words, it is only a matter of time before gay couples will sue the states where same-sex marriage is still illegal, and the federal courts will find those laws unconstitutional using the same legal reasoning as Justice Kennedy did in his opinion.
    Justice Alito, in his dissenting opinion, noted that "The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come" (dissenting opinion, p.8). In a footnote he added, "As sociologists have documented, it sometimes takes decades to document the effects of social changes – like the sharp rise in divorce rates following the advent of no-fault divorce – on children and society" (Ibid.). And he concludes by saying, "At present, no one – including social scientists, philosophers, and historians – can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be" (p. 9).
    And yet accepted is what same-sex marriage is rapidly becoming. For better or for worse, the U.S. Supreme Court has taken the fateful plunge, and it is probably too late to turn around now. Supreme Court decisions are notoriously difficult to reverse.
    It is perhaps only a matter of time before those churches who wish to remain faithful to Christian standards of morality will find themselves branded as bigoted hate groups. The Court's decision does not augur well for the continued freedom of religion in this country.


Other blog posts on related topics:
The Queer Scouts of America?
The Real Issue in the Gay Marriage Debate
Same Sex Marriage:What Is at Stake