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“YouTube and Google are proud to celebrate marriage equality” proclaimed the mighty Google search page yesterday. At the rate things are going, June 26 will wind up being a national holiday in the future.
Yesterday’s decision didn’t just extend the legal rights and privileges of marriage to same-sex partners; civil unions began that process a while ago. Yesterday redefined state-sanctioned marriage itself. It’s more than marriage “equality.” This is marriage expansion.
“Marriage equality” was an advertising slogan, a finesse to fit marriage within the Due Process Clause of the 14th Amendment. Marriage is a fundamental liberty. Everyone gets equal liberties. Just as Loving v. Virginia made interracial marriage legal in all states, Obergefell does it for same-sex couples.
In hindsight, state laws against interracial marriage are viewed as a clear form of barbarism from a bygone era. Richard Loving, a white gentleman, and Mildred Jeter, a black lady, were married in Virginia in 1958, and subsequently charged, found guilty, and sentenced to a year in jail. On June 12, 1967, the Supreme Court decided 9-0 that the Loving marriage was no crime. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State” wrote Chief Justice Earl Warren.
Will the 5-4 Obergefell decision seem as sensible as the 9-0 decision in Loving when it has stood the same test of time – almost 50 years?
Obergefell is, of course, different from Loving. The 14th Amendment was about establishing equal rights and protections, especially between the races, in the context of the 13th Amendment, which abolished slavery. Loving ended part of a pattern of racial discrimination dating back to the age of slavery. It’s precisely the sort of thing the Due Process Clause should prevent. Obergefell breaks a pattern of many more years: the definition of the institution of marriage itself. That’s some heavy legal lifting. I’ll leave it to Ricochet’s crack legal team to explain whether the Court just gave itself a hernia.
The pieces of marriage expansion that interest me most are (a) the broad enthusiasm for marriage among gays, a “conservative” lifestyle turn; (b) the unseemly hook-up between the SSM movement and the political Left; and (c) the ongoing decline of religious doctrine’s influence over secular law. These are in part media-created phenomena, and ongoing media narratives.
If there is opposition to SSM in the gay community, you don’t hear much about it in the media. Single partner domesticity wasn’t always the lifestyle of choice among openly gay men. AIDS changed that. Virtues like commitment, fidelity, and love became a way of life for millions of gay men over the last 35 years. Health, happiness, and monogamous (or “monogamish”) relationships are major upgrades over the earlier scene and its consequences. Conservatives should consider welcoming this change, or in the least standing aside rather than athwart.
Conservatives should also be celebrating the end of the same-sex marriage movement. They won, and now they no longer need the brutish tacticians of the political Left as allies. Republicans nationwide shouldn’t hesitate to do what the California GOP has already done: sanction and recognize Log Cabin Republicans as fully enfranchised members of our political coalition. We should do this quickly, publicly, and enthusiastically. Gays and lesbians are often adept capitalists and creative leaders. Welcome home to the political party that will protect your hard-earned dual incomes, and that desperately needs your creativity!
Note that Catholics on the Supreme Court voted 4-2 against the Court’s finding in Obergefell. The secular power of the Catholic Church has been in decline for centuries, and that continues. I respect Justices Alito, Thomas, Scalia and, okay, Roberts enough to presume that their call in this case was made strictly on the basis of law and not their religious beliefs. That is as it should be. It is even clearer that Justices Kennedy and Sotomayor, who voted the other way, did not have their interpretation of the Constitution determined by religious dictates.
As for Archbishop Kurtz, his opinion that “it is profoundly immoral and unjust for the government to declare that two people of the same sex can constitute a marriage” is a bold graffiti on the “wall of separation” between Church and State, a wall that now stands taller and stronger. When the Pope arrives in a few months to address Congress, it will be interesting to hear whether he stirs this pot along with his focus on climate change and wealth redistribution.
My hope is that, however much hue and cry those on the losing side of yesterday’s ruling make, the victors will, in the words of radio host Doug McIntyre “be gracious in victory. Don’t sue churches who won’t perform marriages, don’t go after bakeries. Tolerance goes both ways.”