What It Means

“Love wins!” “A great day!” “Finally! Personhood and dignity for all!” “Love is love!” “So proud to be an American today!” “Good on ya, Supreme Court!”

Just a sample of the jubilant Facebook posts swamping my current newsfeed as the nation processes this landmark Supreme Court ruling. I have no desire to step on anyone’s jubilation, even though my own reaction is decidedly more mixed, and the future is far cloudier than the plethora of rainbows would suggest.

On the merits of the case, however, there’s absolutely no question in my mind that the court did the right thing.

Marriage between a man and a woman has been a bedrock institution of civilization for thousands of years, which is why I’ve been less than eager to welcome a redefinition thereof, mainly because it further erodes the standard that children are best served when raised in an environment with a mommy and a daddy. Yet that does not change the fact that the Supreme Court was correct to overturn the blatantly unconstitutional elements of the Defense of Marriage Act (DOMA), despite anyone’s reservations about the decision’s long-term policy implications.

At this level, policy is irrelevant. The Supreme Court should be in the business of interpreting law, not making policy. A justice recognizing their proper role should be willing to uphold laws with which they disagree as long as the legislation passes constitutional muster. Chief Justice John Roberts acknowledged that principle in his controversial opinion re: the Affordable Care Act, AKA Obamacare. On that occasion, he stated that since the Constitution permits the law, “it is not [the Court’s] role to forbid it, or to pass upon its wisdom or fairness.” Or, as Justice Antonin Scalia has put it, “A lot of stupid stuff is perfectly constitutional.”

By the same token, laws supporting policies with which we agree can still be perfectly unconstitutional. Such was the case with DOMA. It was written specifically to subvert the part of Article IV of the Constitution known as the “Full Faith and Credit Clause,” which demands that “[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Under DOMA, that plain constitutional language couldn’t be applied to marriage contracts between people of the same gender, so Utah remained free to ignore gay marriages that originated in Massachusetts. Regardless of one’s opinion about gay marriage in principle, it’s clear the Constitution doesn’t allow that kind of exclusion in practice.

One of the most cynical aspects of DOMA is that many lawmakers who supported it thought it to be unconstitutional at the time, yet they voted for it anyway. President Clinton has since admitted that he signed the act fully expecting the Supreme Court to strike it down. Seventeen years ago, when DOMA became law, public opinion was firmly united against gay marriage, whereas in 2013, the political pendulum has swung the other way. But constitutional principles should remain inviolate, regardless of public opinion or policy preferences. That was true then, and it’s true now.

Constitutionally, the Court had no other choice than to decide how they did. And what’s stunning to me is that none of the conservative bloc was able to recognize this.

How can John Roberts, the same John Roberts who excoriated Obamacare while simultaneously upholding it, now essentially adopt the position that the policy enacted by DOMA is reprehensible enough that it precludes its constitutionality? How can Antonin Scalia, who thinks dumb and constitutional aren’t mutually exclusive, write a scathing opinion denouncing gay marriage? This wasn’t a debate about gay marriage – it should have been a debate about the applicability of the Full Faith and Credit Clause, which should be valid whether we’re talking about marriage or shoes or dental chairs. Yet, once again, this clause, and the entire Constitution, is now subject entirely to the whims of Anthony Kennedy, as neither the conservative nor the liberal bloc on the court is willing to overlook rigid ideological thinking to impartially consider the law, and Kennedy, who has no ideology to speak of, is always going to vote with whatever side looks cooler on any given day.

But it is what it is. And this time, it’s right on the legal merits. Big deal. What does it really mean?

It means that the free exercise of religion in this country is essentially over. Any opposition to gay marriage is now the equivalent of using the N-word in polite company. Churches that refuse to grant equal status to same-sex couples will become pariahs much like the Ku Klux Klan. It is only a matter of time before such groups lose their tax-exempt status, and, perhaps, their incorporated right to exist as legal entities at all.

Scalia, whose dissenting opinion is dead wrong legally, is right on the money when he describes the far-reaching practical implications of what the Court has wrought. He notes that the majority opinion paints DOMA’s opponents as “unhinged members of a wild-eyed lynch mob” and that anyone raising any objections to same-sex marriage is trying to “‘demean,” to “impose inequality,” to “impose … a stigma,” to deny people “equal dignity,” to “brand gay people as ‘unworthy,'” and, ridiculously, to “humiliate their children.” Scalia points out that the majority has now labeled anyone who opposes gay marriage at any level and for any reason as “beyond the pale of reasoned disagreement” and “enemies of the human race.”

Quoting Scalia at length now:

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. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament… Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But 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.

He’s absolutely right. And it’s already happening. My Facebook friends cheering love’s victory have implicitly branded the losers as love’s opponents. That will be one of the kinder labels that will be applied to anyone with any gay marriage objections in the days and years ahead.

UPDATE: Over on Facebook, an actual lawyer had this to say:

“Your reasoning for agreeing that the court got it right is that DOMA violates the Full Faith and Credit clause of the US Constitution is is therefore unconstitutional. But the courts opinion speaks nothing about section 2 of DOMA. In fact they left that section intact. They focused entirely on section 3 of DOMA which defines marriage as only between a man and a woman. The opinion actually finds that definition unconstitutional based on equal protection grounds. I would agree with you if the court had attacked section 2 as violative of the Fair Faith and Credit clause, but they didn’t do that. This was a specific attack on the definition of marriage as being between a man and a woman. This is judicial activism at its worst and is not a legally sound opinion.”

Interesting. I confess I made my evaluation without actually reading the decision. I still contend that DOMA is unconstitutional as a result of the Full Faith and Credit Clause, but the fact that the Court didn’t bother to approach the issue with that in mind is entirely disturbing.

UPDATE II: Another actual lawyer chimed in on Facebook with a different perspective.

“The reason this decision was not based on the Full Faith and Credit clause is because that applies to how states treat each other. So if Arizona says it won’t recognize a Calif marriage, the FF&C clause applies. And you’re right, that’s a no-brainer. States can’t refuse to recognize another state’s gay marriage anymore than Southern states could refuse to recognize northern states’ interracial marriages. Instead, this case involved the federal gov’t trying to invalidate a state’s right to define marriage. This couple was married but when one died the IRS said the other had to pay an extra $363K in taxes because the federal government didn’t consider them to be “spouses”. The SCt held that states–not the federal govt–gets to define marriage and the federal gov’t can’t bypass that authority by stigmatizing the very people states have tried to protect. Instead, gay married couples have to be treated the same in NY as other married couples and the federal government can’t create 2 classes of married people in NY–married for state laws and not married for federal laws. That’s why they applied the Equal Protection clause.”

That’s good to know, and it makes me feel a bit better about the legal reasoning, even though my explanation was entirely wrong.

The Big Twist
The Natural Man Blues

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