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The outgoing bishop of New Hampshire, Douglas E. Theuner, right, presents the incoming bishop, V. Gene Robinson, left, with a crosier, carved by a Palestinian shepherd, as a gift during Robinson’s investiture ceremony Sunday, March 7, 2004, at St. Paul’s Church in Concord, N.H. Robinson officially became the Episcopal Church’s first openly gay bishop. (AP Photo/Lee Marriner)
Much has been written about the recent decisions affecting marriage for same gender partners. But this pair of decisions — and more particularly, the reasoning and opinions behind those decisions — are far more significant than a first glance would indicate.
It was, at first, disappointing that California’s Proposition 8 was rejected on the grounds of standing. Many had hoped the case would be used to articulate a constitutional right for all citizens to marry. However, in rejecting the case based on a lack of standing to make the appeal in the first place, the Court rejected one of the opposition’s key arguments: that gay marriage would harm all existing heterosexual marriages. But the issue of “who has standing to bring forward a case” is based on the notion that the appealing plaintiffs can demonstrate that they have been harmed by the proposed ruling in question. In rejecting the Prop 8 appeal on standing, the Court found that such a demonstration of injury to the appealing plaintiffs was lacking. In other words, claims by the anti-marriage forces that their marriages would be harmed by gay marriages was lacking any evidence to prove that harm. This is a devastating blow to those who oppose gay marriage and will have broad ramifications for those who may make subsequent challenges to marriage equality in other states. “We are hurt by this” will no longer be an acceptable argument.
No one expected Justice Scalia to be on the side of marriage equality in this debate. Yet, his dissenting opinion Scalia the DOMA case turns out to offer the best rationale for marriage equality to be extended throughout the land. Ten years ago, in another dissenting opinion (to the Lawrence v. Texas case, striking down anti-sodomy laws) Scalia predicted that the ruling against anti-sodomy laws and the “normalization” of homosexuality would lead to the legalization of gay marriage. Ten years later, it turns out he was right. Then in this case overturning DOMA, Scalia warns that the majority opinion lays out the framework whereby ALL laws limiting marriage to one man and one woman will be ruled unconstitutional as well. In finding that DOMA targets a particular group of citizens for discrimination, based on nothing more than a desire to demean and stigmatize one group within society, the court, says Scalia, lays the groundwork for claiming discrimination (and the animus which underlies it) in constitutional amendments defining marriage as only being between a man and a woman. In time, it will turn out that Scalia is right once again.
Perhaps the biggest win of all was the basis on which DOMA was overturned. Many had predicted a positive result, but based on different supporting arguments. In the questioning at the hearing, Justice Kennedy seemed to be leaning on federalist arguments against DOMA — that this was an instance of the federal government interfering with what is the states’ business. But in the end, Kennedy agreed with the four liberal justices that this was an unconstitutional violation of the equal protection guaranteed in the Fifth Amendment. This has enormous ramifications for overturning state constitutional amendments defining marriage as being only between one man and one woman, setting the stage for marriage equality nationwide.
Finally, as a religious person, this pair of rulings supports the notion held by every faith, that the dignity of every human being should be honored and supported. As my friend and colleague The Rev. Susan Russell points out, the question God asks is not “Whom do you love?,” but rather “Do you love?” The First Letter of John in the New Testament asserts that those who love know God. For religious people, loving relationships should be honored and supported because they allow us to participate in the divine. In its own secular way, and based on the Constitution, the Supreme Court has reflected that same understanding, honoring and offering society’s support to loving relationships between any two people willing to take on the commitments and responsibilities of marriage. That is no small thing.
Bishop Gene Robinson is a Senior Fellow at the Center for American Progress. He is the recently-retired Episcopal Bishop of New Hampshire and is legally married to his partner of 25+ years.