The issue of same sex marriage is all over the news and certainly has the Christofascists fuming and spraying spittle. But ultimately, the issue will likely be decided in the courts just as was the case with school segregation and bans on interracial marriage. A column in the Washington Post looks at some of the analysis and arguments being made in the current DOMA litigation and of course in the California Proposition 8 case. The reality is that once religion - or more correctly conservative anti-gay religion - is stripped from the equation, there truly is little to support what is nothing more than a blatant denial of equal protection under the law to LGBT citizens and same sex couples. Not coincidentally, the Bible is being cited as the Christianists basis for open bigotry. Just as it was to support slavery and just as it was to support the bans on interracial marriage. Here are column highlights:
President Obama is walking a tightrope on same-sex marriage, teetering between his stated view that marriage is the province of the states and his legal position that refusal to recognize same-sex marriage can violate the Constitution.
Referring to Mitt Romney’s support for a constitutional amendment to bar same-sex marriage, the president warned it would be “a mistake to try to make what has traditionally been a state issue into a national issue.”
But in Loving v. Virginia, the Supreme Court’s 1967 ruling that anti-miscegenation laws violate the equal protection and due process clauses of the Constitution, the justices did exactly what Obama counsels against. The decision transformed a state issue into a national one, because of the odiousness of discriminating on the basis of race and the fundamental importance of the right to marry.
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” Chief Justice Earl Warren wrote in Loving.
Federal courts are now grappling with the ruling’s modern-day equivalent: whether those constitutional protections extend to same-sex couples. Under Obama’s direction, the Justice Department took the extraordinary step of declining to defend the constitutionality of the Defense of Marriage Act (DOMA) . .
[T]he implications of the Justice Department’s legal arguments point to an eventual clash with the president’s leave-it-to-the-states approach. In its brief arguing that DOMA is unconstitutional, the department said that laws discriminating on the basis of sexual orientation should be subject to “heightened scrutiny” by courts. That would mean such laws could pass constitutional muster only if they are “substantially related to an important governmental objective.”
DOMA, it contended, failed to meet that test. Citing earlier Supreme Court rulings, the Justice Department argued that the interests Congress asserted in passing DOMA, such as “defending traditional notions of morality” or “promoting heterosexuality,” are not acceptable justifications. “Discouraging homosexuality, in other words, is not a governmental interest that justifies sexual orientation discrimination,” the brief stated.
Neither, it continued, is the notion of defending traditional heterosexual marriage. “As an initial matter, reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles,” the brief said.
[T]he leap from not defending DOMA to taking a position that same-sex couples have a constitutional right to marry is not very great. Indeed, it seems almost preordained by the conclusion that sexual orientation is a classification, like race or gender, subject to heightened scrutiny.
Once that tougher test for justifying a law is triggered, the chance of it being deemed constitutional plummets, and rightly so. Where fundamental rights are involved, where the groups being targeted have a history of being discriminated against, their freedom to marry should not depend on whether they live in Mississippi or Massachusetts. The president, as a former constitutional law professor and, even more, as the son of a couple whose marriage would have been illegal in 22 states, surely understands this point. States, like presidents, evolve. But in the end, the rights of gay Americans, as those of African Americans, cannot be left to majority whim.
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