On that score, the court got one case right, punted on the other and managed to send a hopelessly mixed message regarding the only question that really matters but was not directly addressed by either decision:
Is there a constitutional right to same-sex marriage or isn't there?
As a conservative who believes (perhaps naively) that the nine and 10th amendments still matter, I have no constitutional objection to the court's 5-4 decision to overturn a provision in the Defense of Marriage Act that withheld federal benefits to gay couples legally married in specific states. Those who support a certain degree of “states' rights” should think twice before applauding when the federal government intervenes against states that use their autonomy in the “wrong” way.
If states have the constitutional authority to approve same-sex marriage, after all, the federal government must surely also recognize their authority to reach the opposite conclusion.
Then again, the court hinted, maybe not.
That's because the court also ruled 5-4 that private individuals and groups seeking to uphold California's voter-approved ban on gay marriage did not have standing because they were not state officials. The ruling allowed the 9th Circuit Court of Appeals' previous rejection of “Proposition 8” to stand, effectively clearing the way for gay marriage in California.
In theory, at least, a group with standing could still challenge the Appeals Court's ruling and prevail. But in a blistering dissent, Supreme Court Justice Antonin Scalia Wednesday suggested the court has already signaled its support for same-sex marriage.
Responding to Justice Anthony Kennedy's majority opinion in the Defense of Marriage ruling, Scalia argued that accusing supporters of the law of attempting to “disparage, injure, degrade, demean and humiliate our fellow human beings” implied sinister motives where none exist. “To defend traditional marriage (does not do those things) any more than to defend the Constitution (against other constitutions does),” Scalia wrote. “It is one thing for society to elect change; it is another for a court of law to impose change by adjudging those who oppose it (as) . . . enemies of the human race.”
Although some opponents of gay marriage may indeed be “homophobes,” the broad application of that slur to anyone who disagrees undermines not only the current argument of gay-rights supporters but anticipates the day when daring to oppose gay rights – even by quoting the Bible – will be condemned as “hate speech.” And if you think that can't happen, it already has in Canada and elsewhere.
It is a statistical fact that children need best when both a mother and father are present. But Father Jason Freiburger, vice chancellor of the Diocese of Fort Wayne-South Bend, noted that “Only a man can be a father and only a woman can be a mother. Every child benefits from the nurturing of a mother and the leadership of a father. (But) having two mothers or two fathers is confusing for
children and detrimental to their wellbeing.”
You may disagree with that. But it's hardly hate speech. In fact, it represented mainstream thought for centuries.
Which raises the obvious legal point: If “equal protection under the law” sanctions the union of two men, how can the principle not also be invoked in the future by supporters of polygamy, arranged marriages or nuptials involving children or close relatives? Doesn't any redefinition of marriage simply replace one set of values – “discrimination” — with another?
For now, said Indiana Senate President Pro Tem David Long, R-Fort Wayne, Indiana and most other states appear to retain the right to define marriage for themselves. “I fully anticipate that both the Senate and House will be voting on a marriage amendment next session,” Long said. Perhaps traditional Christians and others will also heed the court's wake-up call and finally stop taking it for granted that their views will always be accepted – or even tolerated.
The end game remains very much in doubt because, as Scalia noted, “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.”