WASHINGTON — In a long-sought victory for the gay rights
movement, the Supreme Court ruled by a 5-to-4 vote on Friday that the
Constitution guarantees a right to same-sex marriage.
“No longer may this liberty be denied,” Justice Anthony M. Kennedy wrote for the
majority in the historic decision. “No union is more profound than marriage, for
it embodies the highest ideals of love, fidelity, devotion, sacrifice and
family. In forming a marital union, two people become something greater than
once they were.”
Marriage is a “keystone of our social order,” Justice Kennedy said, adding that
the plaintiffs in the case were seeking “equal dignity in the eyes of the law.”
The decision, which was the culmination of decades of litigation and activism,
set off jubilation and tearful embraces across the country, the first same-sex
marriages in several states, and resistance — or at least stalling — in others.
It came against the backdrop of fast-moving changes in public opinion, with
polls indicating that most Americans now approve of the unions.
The court’s four more liberal justices joined Justice Kennedy’s majority
opinion. Each member of the court’s conservative wing filed a separate dissent,
in tones ranging from resigned dismay to bitter scorn.
In dissent, Chief Justice John G. Roberts Jr. said the Constitution had nothing
to say on the subject of same-sex marriage.
“If you are among the many Americans — of whatever sexual orientation — who
favor expanding same-sex marriage, by all means celebrate today’s decision,”
Chief Justice Roberts wrote. “Celebrate the achievement of a desired goal.
Celebrate the opportunity for a new expression of commitment to a partner.
Celebrate the availability of new benefits. But do not celebrate the
Constitution. It had nothing to do with it.”
In a second dissent, Justice Antonin Scalia mocked the soaring language of
Justice Kennedy, who has become the nation’s most important judicial champion of
gay rights.
“The opinion is couched in a style that is as pretentious as its content is
egotistic,” Justice Scalia wrote of his colleague’s work. “Of course the
opinion’s showy profundities are often profoundly incoherent.”
Thousands, including parents, babies and dogs, flocked to the Supreme Court
after its ruling on same-sex marriage. Supporters spoke about how they thought
the ruling helped maintain and support families. By Channon Hodge on Publish
Date June 26, 2015. Photo by Albert Cesare/The Montgomery Advertiser, via
Associated Press.
As Justice Kennedy finished announcing his opinion from the bench on Friday,
several lawyers seated in the bar section of the court’s gallery wiped away
tears, while others grinned and exchanged embraces.
Justice John Paul Stevens, who retired in 2010, was on hand for the decision,
and many of the justices’ clerks took seats in the chamber, which was nearly
full as the ruling was announced. The decision made same-sex marriage a reality
in the 13 states that had continued to ban it.
Outside the Supreme Court, the police allowed hundreds of people waving rainbow
flags and holding signs to advance onto the court plaza as those present for the
decision streamed down the steps. “Love has won,” the crowd chanted as courtroom
witnesses threw up their arms in victory.
In remarks in the Rose Garden, President Obama welcomed the decision, saying it
“affirms what millions of Americans already believe in their hearts.”
“Today,” he said, “we can say, in no uncertain terms, that we have made our
union a little more perfect.”
Justice Kennedy was the author of all three of the Supreme Court’s previous gay
rights landmarks. The latest decision came exactly two years after his majority
opinion in United States v. Windsor, which struck down a federal law denying
benefits to married same-sex couples, and exactly 12 years after his majority
opinion in Lawrence v. Texas, which struck down laws making gay sex a crime.
In all of those decisions, Justice Kennedy embraced a vision of a living
Constitution, one that evolves with societal changes.
“The nature of injustice is that we may not always see it in our own times,” he
wrote on Friday. “The generations that wrote and ratified the Bill of Rights and
the Fourteenth Amendment did not presume to know the extent of freedom in all of
its dimensions, and so they entrusted to future generations a charter protecting
the right of all persons to enjoy liberty as we learn its meaning.”
This drew a withering response from Justice Scalia, a proponent of reading the
Constitution according to the original understanding of those who adopted it.
His dissent was joined by Justice Clarence Thomas.
“They have discovered in the Fourteenth Amendment,” Justice Scalia wrote of the
majority, “a ‘fundamental right’ overlooked by every person alive at the time of
ratification, and almost everyone else in the time since.”
“These justices know,” Justice Scalia said, “that limiting marriage to one man
and one woman is contrary to reason; they know that an institution as old as
government itself, and accepted by every nation in history until 15 years ago,
cannot possibly be supported by anything other than ignorance or bigotry.”
Justice Kennedy rooted the ruling in a fundamental right to marriage. Of special
importance to couples, he said, is raising children.
“Without the recognition, stability and predictability marriage offers,” he
wrote, “their children suffer the stigma of knowing their families are somehow
lesser. They also suffer the significant material costs of being raised by
unmarried parents, relegated through no fault of their own to a more difficult
and uncertain family life. The marriage laws at issue here thus harm and
humiliate the children of same-sex couples.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan
joined the majority opinion.
In dissent, Chief Justice Roberts said the majority opinion was “an act of will,
not legal judgment.”
“The court invalidates the marriage laws of more than half the states and orders
the transformation of a social institution that has formed the basis of human
society for millennia, for the Kalahari Bushmen and the Han Chinese, the
Carthaginians and the Aztecs,” he wrote. “Just who do we think we are?”
The majority and dissenting opinions took differing views about whether the
decision would harm religious liberty. Justice Kennedy said the First Amendment
“ensures that religious organizations and persons are given proper protection as
they seek to teach the principles that are so fulfilling and so central to their
lives and faiths.” He said both sides should engage in “an open and searching
debate.”
Chief Justice Roberts responded that “people of faith can take no comfort in the
treatment they receive from the majority today.”
Justice Samuel A. Alito Jr., in his dissent, saw a broader threat from the
majority opinion. “It will be used to vilify Americans who are unwilling to
assent to the new orthodoxy,” Justice Alito wrote. “In the course of its
opinion, the majority compares traditional marriage laws to laws that denied
equal treatment for African-Americans and women. The implications of this
analogy will be exploited by those who are determined to stamp out every vestige
of dissent.”
Gay rights advocates had constructed a careful litigation and public relations
strategy to build momentum and bring the issue to the Supreme Court when it
appeared ready to rule in their favor. As in earlier civil rights cases, the
court had responded cautiously and methodically, laying judicial groundwork for
a transformative decision.
It waited for scores of lower courts to strike down bans on same-sex marriages
before addressing the issue, and Justice Kennedy took the unusual step of
listing those decisions in an appendix to his opinion.
Chief Justice Roberts said that only 11 states and the District of Columbia had
embraced the right to same-sex marriage democratically, at voting booths and in
legislatures. The rest of the 37 states that allow such unions did so because of
court rulings. Gay rights advocates, the chief justice wrote, would have been
better off with a victory achieved through the political process, particularly
“when the winds of change were freshening at their backs.”
In his own dissent, Justice Scalia took a similar view, saying that the
majority’s assertiveness represented a “threat to American democracy.”
But Justice Kennedy rejected that idea. “It is of no moment whether advocates of
same-sex marriage now enjoy or lack momentum in the democratic process,” he
wrote. “The issue before the court here is the legal question whether the
Constitution protects the right of same-sex couples to marry.”
Later in the opinion, Justice Kennedy answered the question. “The Constitution,”
he wrote, “grants them that right.”
Correction: June 26, 2015
An earlier version of this article misstated the time period since Justice
Anthony M. Kennedy wrote the majority opinion in Lawrence v. Texas, which struck
down laws making gay sex a crime. It is 12 years, not 10.
November 7,
2012
The New York Times
By ERIK ECKHOLM
Voters in
Maine and Maryland approved same-sex marriage on an election night that jubilant
gay rights advocates called a historic turning point, the first time that
marriage for gay men and lesbians has been approved at the ballot box.
While six states and the District of Columbia have legalized same-sex marriage
through court decisions or legislative decisions, voters had rejected it more
than 30 times in a row.
Results for the other two states voting on same-sex marriage, Minnesota and
Washington, were still coming in late Tuesday, but rights groups said that the
victories in two states and possibly more were an important sign that public
opinion was shifting in their direction.
“We have made history for marriage equality by winning our first victory at the
ballot box,” said Chad Griffin, the president of the Human Rights Campaign,
which raised millions of dollars for the races in the four states.
Matt McTighe, the campaign manager for Mainers United for Marriage, said, “A lot
of families in Maine just became more stable and secure.”
At a victory party in Baltimore, supporters of Maryland’s referendum danced and
cheered as balloons filled the air. “I’m so elated right now,” said Mary Bruce
Leigh, 32. “This is the civil rights issue of our time, and we have succeeded in
Maryland.”
In what appeared to be a close race in Minnesota, voters were asked to adopt a
constitutional amendment limiting marriage to a man and a woman. While the state
already has a law barring same-sex marriage, conservatives hoped to prevent a
future Legislature or court decision from reversing it.
In Washington State, supporters of a referendum authorizing same-sex marriage
appeared to have an edge in pre-election polls, but final results were not
expected until later this week because ballots were still being mailed in as
late as Tuesday.
Laurie Carlsson, 33, stood on a freeway overpass with a sign urging drivers to
honk for the referendum.
“Seattleites do not use their horns — ever — but today they’re honking,” Ms.
Carlsson said as a deafening roar erupted. “It’s making me giddy.”
It has been a constant theme of opponents of same-sex marriage that whenever it
has been put before voters it has lost. In 30 states, voters have limited
marriage to a man and a woman through constitutional amendments, and same-sex
marriage has also been blocked in referendums like those in California in 2008
and Maine in 2009.
This year, the legislatures in Washington and Maryland approved same-sex
marriage, but opponents gathered enough signatures to force referendums. In
Maine, since their loss in 2009, gay rights advocates have been cultivating
public opinion in one-on-one conversations, and this year sponsored their
successful repeat election.
In the final week of the campaign, the opponents of marriage rights, mainly
financed by the National Organization for Marriage and the Roman Catholic
Church, mounted a barrage of advertising and telephone appeals in all four
states, trying to convince undecided voters that “redefining marriage” would
force schools to “teach gay marriage” and require businesses and churches to
violate religious principles.
Rights groups have denounced those messages as misleading scare tactics and say
they do not seek to redefine marriage but to end discrimination.
For many weeks, reflecting their more than threefold advantage in fund-raising
nationwide, advocates of same-sex marriage have unleashed advertisements of
their own in which community members say that gay and lesbian friends deserve
the same chance to love and marry that others enjoy.
Pre-election polling in Washington State indicated that a slight majority of
voters supported the referendum. “We have weathered their waves of attacks and
not lost any ground,” said Zach Silk, the campaign manager of Washington United
for Marriage, in an interview before the voting began.
Frank Schubert, who managed the campaigns to ban same-sex marriage in all four
states, disputed the notion that Tuesday’s ballots were a major turning point.
“The votes are very close everywhere,” he said.
Isolde Raftery
contributed reporting from Seattle,
DENVER — A bill that would have allowed civil unions for
same-sex couples in Colorado was defeated on Monday night during a special
legislative session called by Gov. John W. Hickenlooper to debate the issue.
The legislation was voted down by Republican lawmakers on a 5-to-4 vote along
party lines after more than two hours of emotional testimony in the State,
Veterans and Military Affairs Committee, where it was assigned Monday by
Republican leadership in the House of Representatives.
“We saw this bill die even though a majority of members of the Senate and a
majority of members of the House and the governor, as well as a vast majority of
Coloradans, want to see this become law,” said Representative Mark Ferrandino of
Denver, one of four openly gay state legislators and a sponsor of the bill. “It
is very unfortunate. Families across Colorado are going to have to wait longer
for equal rights in our state.”
Supporters had come tantalizingly close to passing the legislation this year
after several Republicans decided to break party ranks and back it.
The bill had cleared a number of committees and the full State Senate, but
lawmakers reached an impasse last week and the bill was never brought to the
House floor for a full vote before the legislative session concluded.
Supporters accused Republicans of stalling to prevent debate on the bill, while
Republicans argued that Democrats had waited until the end of the session before
pushing the bill through to force a political showdown.
The stalemate, which also resulted in dozens of other bills being left on the
calendar, prompted the call for a special session by Mr. Hickenlooper, who
described civil unions as “a fundamental question of fairness and civil rights”
in a letter to legislators.
But if the special session breathed fresh life back into the legislation, it was
short-lived.
On Monday, despite the urgings of civil-union supporters who rallied at the
Capitol in Denver, the House speaker, Frank McNulty, a Republican from Highlands
Ranch, assigned the bill to the state affairs committee, which was dominated by
opponents of the legislation.
In a statement, Mr. McNulty accused Mr. Hickenlooper and Democrats of “pushing a
last-minute, divisive attack on our traditional views on marriage” for their
short-term political gain.
In voting against the bill, Representative Don Coram, a Republican from
Montrose, said he was especially torn, because he has a gay son. “This is a
situation that is very close to my heart,” he said. “But it’s very difficult
because I also represent 75,000 people in southwest Colorado. What you are
asking me to do here is to invalidate the vote of six years ago.”
Mr. Coram was referring to a 2006 amendment approved by the state’s voters that
defined marriage as being between a man and a woman.
The debate over civil unions in Colorado comes as North Carolina voters last
Tuesday approved an amendment that would ban same-sex marriages, partnerships
and civil unions. The next day, President Obama said that he now supported
same-sex marriage.
DENVER — A bill that would have allowed civil unions for
same-sex couples in Colorado was defeated on Monday night during a special
legislative session called by Gov. John W. Hickenlooper to debate the issue.
The legislation was voted down by Republican lawmakers on a 5-to-4 vote along
party lines after more than two hours of emotional testimony in the State,
Veterans and Military Affairs Committee, where it was assigned Monday by
Republican leadership in the House of Representatives.
“We saw this bill die even though a majority of members of the Senate and a
majority of members of the House and the governor, as well as a vast majority of
Coloradans, want to see this become law,” said Representative Mark Ferrandino of
Denver, one of four openly gay state legislators and a sponsor of the bill. “It
is very unfortunate. Families across Colorado are going to have to wait longer
for equal rights in our state.”
Supporters had come tantalizingly close to passing the legislation this year
after several Republicans decided to break party ranks and back it.
The bill had cleared a number of committees and the full State Senate, but
lawmakers reached an impasse last week and the bill was never brought to the
House floor for a full vote before the legislative session concluded.
Supporters accused Republicans of stalling to prevent debate on the bill, while
Republicans argued that Democrats had waited until the end of the session before
pushing the bill through to force a political showdown.
The stalemate, which also resulted in dozens of other bills being left on the
calendar, prompted the call for a special session by Mr. Hickenlooper, who
described civil unions as “a fundamental question of fairness and civil rights”
in a letter to legislators.
But if the special session breathed fresh life back into the legislation, it was
short-lived.
On Monday, despite the urgings of civil-union supporters who rallied at the
Capitol in Denver, the House speaker, Frank McNulty, a Republican from Highlands
Ranch, assigned the bill to the state affairs committee, which was dominated by
opponents of the legislation.
In a statement, Mr. McNulty accused Mr. Hickenlooper and Democrats of “pushing a
last-minute, divisive attack on our traditional views on marriage” for their
short-term political gain.
In voting against the bill, Representative Don Coram, a Republican from
Montrose, said he was especially torn, because he has a gay son. “This is a
situation that is very close to my heart,” he said. “But it’s very difficult
because I also represent 75,000 people in southwest Colorado. What you are
asking me to do here is to invalidate the vote of six years ago.”
Mr. Coram was referring to a 2006 amendment approved by the state’s voters that
defined marriage as being between a man and a woman.
The debate over civil unions in Colorado comes as North Carolina voters last
Tuesday approved an amendment that would ban same-sex marriages, partnerships
and civil unions. The next day, President Obama said that he now supported
same-sex marriage.
May 13, 2012
The New York Times
By PETER BAKER
and RACHEL L. SWARNS
WASHINGTON — About two hours after declaring his support for
same-sex marriage last week, President Obama gathered eight or so
African-American ministers on a conference call to explain himself. He had
struggled with the decision, he said, but had come to believe it was the right
one.
The ministers, though, were not all as enthusiastic. A vocal few made it clear
that the president’s stand on gay marriage might make it difficult for them to
support his re-election.
“They were wrestling with their ability to get over his theological position,”
said the Rev. Delman Coates, the pastor of Mt. Ennon Baptist Church in Clinton,
Md., who was on the call.
In the end, Mr. Coates, who supports civil marriages for gay men and lesbians,
said that most of the pastors, regardless of their views on this issue, agreed
to “work aggressively” on behalf of the president’s campaign. But not everyone.
“Gay marriage is contrary to their understanding of Scripture,” Mr. Coates said.
“There are people who are really wrestling with this.”
In the hours following Mr. Obama’s politically charged announcement on
Wednesday, the president and his team embarked on a quiet campaign to contain
the possible damage among religious leaders and voters. He also reached out to
one or more of the five spiritual leaders he calls regularly for religious
guidance, and his aides contacted other religious figures who have been
supportive in the past.
The damage-control effort underscored the anxiety among Mr. Obama’s advisers
about the consequences of the president’s revised position just months before
what is expected to be a tight re-election vote. While hailed by liberals and
gay-rights leaders for making a historic breakthrough, Mr. Obama recognized that
much of the country is uncomfortable with or opposed to same-sex marriage,
including many in his own political coalition.
The issue of religious freedom has become a delicate one for Mr. Obama,
especially after the recent furor over an administration mandate that
religiously affiliated organizations offer health insurance covering
contraceptives. After complaints from Catholic leaders that the mandate undercut
their faith, Mr. Obama offered a compromise that would maintain coverage for
contraception while not requiring religious organizations to pay for it, but
critics remained dissatisfied.
In taking on same-sex marriage, Mr. Obama made a point of couching his views in
religious terms. “We’re both practicing Christians,” the president said of his
wife and himself in the ABC News interview in which he discussed his new views.
“And obviously this position may be considered to put us at odds with the views
of others.”
He added that what he thought about was “not only Christ sacrificing himself on
our behalf but it’s also the golden rule, you know? Treat others the way you
would want to be treated.”
After the interview, Mr. Obama hit the phones. Among those he called was one of
the religious leaders he considers a touchstone, the Rev. Joel C. Hunter, the
pastor of a conservative megachurch in Florida.
“Some of the faith communities are going to be afraid that this is an attack
against religious liberty,” Mr. Hunter remembered telling the president.
“Absolutely not,” Mr. Obama insisted. “That’s not where we’re going, and that’s
not what I want.”
Even some of Mr. Obama’s friends in the religious community warned that he
risked alienating followers, particularly African-Americans who have been more
skeptical of the idea than other Democratic constituencies.
The Rev. Jim Wallis, another religious adviser to Mr. Obama and the president
and chief executive of Sojourners, a left-leaning evangelical organization, said
that he had fielded calls since the announcement from pastors across the
country, including African-American and Hispanic ministers. Religious leaders,
he said, are deeply divided, with some seeing it as the government forcing
clergy to accept a definition of marriage that they consider anathema to their
teachings.
Mr. Wallis said that it was clear to him that the president’s decision was a
matter of personal conscience, not public policy. But he said that some
religious leaders wanted to hear Mr. Obama say that explicitly. “We hope the
president will reach out to people who disagree with him on this,” Mr. Wallis
said. “The more conservative churches need to know, need to be reassured that
their religious liberty is going to be respected here.”
Mr. Obama has reached out to Mr. Wallis, Mr. Hunter and three other ministers
for telephone prayer sessions and discussions about the intersection of religion
and public policy.
Mr. Wallis would not say whether he heard from Mr. Obama as Mr. Hunter did. The
Rev. Kirbyjon Caldwell, another of the five and the senior pastor of Windsor
Village United Methodist Church in Houston, said he did not. “He doesn’t need to
talk with me about that,” Mr. Caldwell said.
The other two pastors, Bishop T. D. Jakes, a nationally known preaching
powerhouse who fills stadiums and draws 30,000 worshipers to his church in
Dallas, and the Rev. Otis Moss Jr., did not respond to messages Friday.
Mr. Obama began reaching out within hours of his announcement on Wednesday. At
4:30 p.m., he convened the African-American ministers on the call.
“It was very clear to me that he had arrived at this conclusion after much
reflection, introspection and dialogue with family and staff and close friends,”
said Mr. Coates, who remains confident that the undecided pastors on the call
will ultimately back the president in November. “There are more public policy
issues that we agree upon than this issue of private morality in which there’s
some difference.”
That is a calculation the White House is counting on. The president’s
strategists hope that any loss of support among black and independent moderates
will be more than made up by proponents of gay marriage. But Mr. Obama’s aides
declined to comment and opted not to send anyone to the Sunday talk shows for
fear of elevating it further.
Religious conservative leaders said the president’s decision changed the
calculus of the election. “I think the president this past week took six or
seven states he carried in 2008 and put them in play with this one ill-conceived
position that he’s taken,” Gary Bauer, the former presidential candidate, said
on the CNN program “State of the Union.” On the same program, Tony Perkins,
president of the Family Research Council, said, “I’ve gotten calls from pastors
across the nation, white and black pastors, who have said, ‘You know what? I’m
not sitting on the sidelines anymore.’ ”
Establishment Republicans, though, were eager to shift the subject. “For those
people that this is their issue, they have a clear choice,” Reince Preibus, the
party chairman, said on NBC’s “Meet the Press.” “But I happen to believe that,
at the end of the day, however, this election is still going to be about the
economy.”
Mr. Obama’s efforts to mollify religious leaders came after a tumultuous week as
he lagged behind Vice President Joseph R. Biden Jr. in advocating same-sex
marriage. A senior administration official who asked not to be named said the
White House contacted religious and Congressional leaders and Democratic
candidates only after the president’s announcement.
Among those contacted was Cameron Strang, editor of Relevant magazine and a
young evangelical leader, but he was on vacation. By contrast, the office of
Cardinal Timothy M. Dolan, the Catholic archbishop of New York, said he had not
heard from the president after publicly calling his decision “deeply saddening.”
Mr. Hunter’s cellphone buzzed shortly after the Wednesday interview. “I’m not at
all surprised he didn’t call me before because I would have tried to talk him
out of it,” Mr. Hunter said.
“My interpretation of Scriptures, I can’t arrive at the same conclusion,” he
said. “He totally understood that. One of the reasons he called was to make sure
our relationship would be fine, and of course it would be.”
May 9, 2012
The New York Times
By JACKIE CALMES
and PETER BAKER
WASHINGTON — Before President Obama left the White House on
Tuesday morning to fly to an event in Albany, several aides intercepted him in
the Oval Office. Within minutes it was decided: the president would endorse
same-sex marriage on Wednesday, completing a wrenching personal transformation
on the issue.
As described by several aides, that quick decision and his subsequent
announcement in a hastily scheduled network television interview were thrust on
the White House by 48 hours of frenzied will-he-or-won’t-he speculation after
Vice President Joseph R. Biden Jr. all but forced the president’s hand by
embracing the idea of same-sex unions in a Sunday talk show interview.
Advisers say now that Mr. Obama had intended since early this year to define his
position sometime before Democrats nominate him for re-election in September.
Yet many of the president’s allies believed he would not do so, trusting instead
in his strong support from gay voters for having ended a ban on openly gay
people in the military and disavowing a federal law defining marriage as between
a man and a woman.
Such caution was understandable, the allies said, given the unpredictable
fallout the president would face by taking a clear stand on one of the most
contentious and politically charged social issues of the day, before what is
likely to be a close election. Mr. Obama’s closest advisers say only the timing
was in question. Mr. Biden’s unexpected remarks undoubtedly accelerated the
timetable.
Initially Mr. Obama and his aides expected that the moment would be Monday, when
the president was scheduled to be on “The View,” the ABC daytime talk show,
which is popular with women. Certainly, they thought, he would be asked his
position on same-sex marriage by one of the show’s hosts, who include Barbara
Walters and Whoopi Goldberg.
Yet the pressure had become too great to wait until then, his aides told him; on
Monday, the White House press secretary, Jay Carney, was pummeled with questions
from skeptical reporters about Mr. Obama’s stance. After the Tuesday morning
meeting, Dan Pfeiffer, the president’s communications director, contacted ABC
and offered a wide-ranging interview with the president for the following day.
And so it was that Mr. Obama on Wednesday afternoon sat down in the White House
with ABC’s Robin Roberts and made news, after nearly two years of saying that
his views on same-sex marriage were “evolving.”
“At a certain point, I’ve just concluded that for me personally it is important
for me to go ahead and affirm that I think same-sex couples should be able to
get married,” Mr. Obama said.
Long a proponent of civil unions, Mr. Obama said his views had changed in part
because of prodding by friends who are gay and by conversations with his wife
and daughters.
“I had hesitated on gay marriage in part because I thought that civil unions
would be sufficient,” Mr. Obama said. “I was sensitive to the fact that for a
lot of people, the word marriage was something that invokes very powerful
traditions and religious beliefs.”
Mr. Obama also invoked his Christian faith in explaining his decision.
“The thing at root that we think about is, not only Christ sacrificing himself
on our behalf, but it’s also the golden rule — you know, treat others the way
you would want to be treated,” he said. “And I think that’s what we try to
impart to our kids, and that’s what motivates me as president.”
Reaction to Mr. Obama’s announcement was largely predictable — including
immediate opposition from his presumptive Republican rival, Mitt Romney — yet
people on both sides of the issue pointed to the historical significance of a
president endorsing marriage between people of the same sex. It was a Democrat,
Bill Clinton, who signed the Defense of Marriage Act, defining marriage as
between a man and a woman, which the Obama administration last year decided not
to enforce in the courts.
While Mr. Obama’s announcement was significant from a symbolic standpoint, more
important as a practical matter were Mr. Obama’s decision not to enforce the
marriage act and his successful push in 2010 to repeal the “don’t ask, don’t
tell” law that prohibited openly gay men and lesbians from serving in the
military. For that reason, gay rights groups had been largely enthusiastic about
his re-election campaign while being pragmatically resigned to his not publicly
supporting same-sex marriage before the election.
Mr. Obama’s announcement has little substantive impact — as an aide said, “It’s
not like we’re trying to pass legislation.”
But the political impact is a wild card, even Obama advisers acknowledged, and
it came one day after voters in North Carolina — the site of the Democratic
Party’s nominating convention — supported a ban on same-sex marriage. But while
the president has now injected a volatile social issue into the campaign debate,
both sides say the election still is all but certain to turn on the economy.
Public support for same-sex marriage is growing at a pace that surprises even
pollsters as older generations of voters who tend to be strongly opposed are
supplanted by younger ones who are just as strongly in favor. Same-sex couples
are featured in some of the most popular shows on television.
Yet opponents include white working-class voters, among whom Mr. Obama has long
had weak support, and many African-Americans, led by influential ministers in
their churches, whose support is critical to Mr. Obama in swing states like
Virginia and North Carolina. Representative Barney Frank, Democrat of
Massachusetts, one of the first openly gay members of Congress, said he told the
White House months ago that it should not worry about the politics.
“This country is moving, and what’s interesting is every time somebody does
something that’s supportive of our rights, it turns out to be (a) popular and
(b) not very controversial,” he said in a telephone interview.
Many Americans already assumed Mr. Obama supported same-sex marriage, Mr. Frank
said, adding, “Politically, it’s kind of a nonevent.”
Obama strategists had rejected the idea of announcing the president’s support
during a fund-raiser or at a speech to a gay rights group, because, as one
Democrat close to the White House put it, that would “look like pandering.”
Then last Friday, Mr. Biden taped his interview for NBC’s “Meet the Press,”
shown on Sunday morning. Afterward, Mr. Biden’s aides circulated a transcript
around the West Wing, with the gay marriage remarks highlighted in yellow. A
flurry of e-mails ensued about how Mr. Biden’s office should explain it once the
interview was broadcast.
The news media attention escalated on Monday when Mr. Obama’s education
secretary, Arne Duncan, acknowledged in a television interview that he also
supported same-sex marriage. Editorialists, columnists and bloggers criticized
Mr. Obama as appearing calculating by his continued ambivalence.
An administration official, who like others did not want to be named discussing
internal White House deliberations, said that until this week, the one certainty
was for Mr. Obama to take his stand before September to avoid a convention
fight. “It’s not helpful to go down there and have a big conflagration about
including this in the platform,” the official said.
But several events loomed that would also force attention on the issue, leaving
Mr. Obama vulnerable to continued criticism.
On Thursday, Mr. Obama is to visit the Los Angeles home of the actor George
Clooney for a campaign fund-raiser expected to raise about $12 million, much of
it from Hollywood people active in the gay rights cause.
Mr. Obama is scheduled to give the commencement address next week at Barnard
College in New York City, where he will receive a medal along with Evan Wolfson,
the founder and president of Freedom to Marry, a leading advocate for same-sex
unions. Mr. Wolfson, who had written that he would “whisper in the president’s
ear” to support same-sex marriage, said in an interview on Wednesday, “I’m going
to shout, ‘Thank you!’ ”
Also on Monday, Mr. Obama is to speak at a campaign fund-raiser for gay rights
supporters. And on June 6, he is to return to Los Angeles to speak at a gala
benefiting the gay, bisexual and transgender community.
Jeff Zeleny contributed reporting.
This article has been revised to reflect the following correction:
Correction: May 10, 2012
An earlier version of this article incorrectly reported
March 23,
2012
The New York Times
By ADAM NAGOURNEY
and BROOKS BARNES
LOS ANGELES
— On a warm Friday afternoon three years ago, Rob Reiner, the director, arrived
for lunch at the Beverly Hills estate of David Geffen, the entertainment mogul.
Mr. Reiner and his political adviser, Chad H. Griffin, had spent six months
drafting an ambitious legal campaign aimed at persuading the United States
Supreme Court to establish a constitutional right of same-sex marriage.
Mr. Reiner, joined by Mr. Griffin and Mr. Reiner’s wife, Michele, told Mr.
Geffen they would need $3 million to challenge Proposition 8, a California voter
initiative approved the previous November banning same-sex marriage. He informed
Mr. Geffen that they had recruited two renowned lawyers, David Boies, a
Democrat, and Theodore B. Olson, a Republican, to argue the case.
“Our feeling is not to go state by state,” Mr. Reiner said. “Our strategy is to
make this wind up in the United States Supreme Court and have this a settled
issue for all time.”
Mr. Geffen asked few questions as they sat in the dining room off his screening
room, with a sweeping view down his sculptured estate. He agreed before the
dessert arrived to raise the money. “I said I’d give them half the money and
raise the other half,” Mr. Geffen recalled. Mr. Geffen wrote a check for $1.5
million and asked Steve Bing, a friend and producer, to make up the rest.
That lunch was a milestone in the dramatic evolution of a behind-the-scenes
fund-raising network whose goal is to legalize same-sex marriage from coast to
coast. This emerging group of donors is not quite like any other fund-raising
network that has supported gay-related issues over the past 40 years. They come
from Hollywood, yes, but also from Wall Street and Washington and the corporate
world; there are Republicans as well as Democrats; and perhaps most strikingly,
longtime gay organizers said, there has been an influx of contributions from
straight donors unlike anything they have seen before.
Mr. Griffin, who this month was named president of the Human Rights Campaign, a
national gay advocacy group, recalled being at a September 2010 fund-raiser for
the Proposition 8 legal fund at the Mandarin Oriental Hotel in New York,
organized by, among others, Wall Street financiers and the former chairman of
the Republican National Committee.
“I knew literally no one in the room,” said Mr. Griffin, whose fund-raising
activities on behalf of the Obama campaign helped earn him a seat at President
Obama’s table at the state dinner at the White House last week. “It was a very
bizarre moment for me. It was really a turning point.”
Money does not always translate into political success, of course. While the
network has bankrolled the legal case that led two courts to throw out
Proposition 8 and also helped power a same-sex marriage bill to law in New York
State, tough battles may lie ahead with marriage initiatives on five state
ballots this year: Maine, Maryland, Minnesota, North Carolina and Washington.
And opponents say that while they might be outmatched financially — the National
Organization for Marriage said it had an annual budget of about $20 million, and
estimates that the combined money being spent in support of same-sex marriage is
many times that — they have a more saleable message. Brian S. Brown, the
president of the organization, said voters had opposed same-sex marriage in the
30 times the question has been on a ballot since 2000.
“We know what we have to do to win,” he said. “We have shown we did not need to
match them dollar for dollar. I would love to. But we’ve won without doing
that.”
The seed money collected at the Geffen home — part of millions of dollars that
have flown into campaigns to finance court battles, initiative efforts and the
campaigns of sympathetic state lawmakers — was an early indicator of the
changing donor network. Mr. Geffen is gay; Mr. Bing is straight. Mr. Bing is
known as a big contributor to political causes, but associates said this was
only the second time he had ever made a major contribution to a gay-related
cause.
The Republican support for the effort largely began after Mr. Olson, a solicitor
general under President George W. Bush, lent it his name. It accelerated with
the fund-raising role of Ken Mehlman, the former chairman of the Republican
National Committee and of Mr. Bush’s re-election campaign, who announced he is
gay 18 months ago and has since helped raise close to $3 million by fishing in
waters where gay organizers had rarely gone before.
As surprising — and encouraging — to organizers of the movement are the Wall
Street names added to their roster. Prominent among them is Paul Singer, a hedge
fund manager who is straight and chairman of the conservative Manhattan
Institute. He has donated more than $8 million to various same-sex marriage
efforts, in states including California, Maine, New Hampshire, New Jersey, New
York and Oregon, much of it since 2007.
“It’s become something that gradually people like myself weren’t afraid to fund,
weren’t afraid to speak out on,” Mr. Singer said in an interview. “I’m somebody
who is philosophically very conservative, and on this issue I thought that this
really was important on the basis of liberty and actual family stability.”
The New York fund-raiser was sponsored by Mr. Singer and Mr. Mehlman, among
others, and drew a crowd that included Henry R. Kravis, a private equity
investor; Daniel S. Loeb, a hedge fund manager; Lewis M. Eisenberg, a former
finance chairman for the Republican National Committee; and Steve Schmidt, who
managed the 2008 presidential campaign of Senator John McCain.
“I try to look for places where there is both a financial and political angle,”
Mr. Mehlman said. “So the fact that we were able to get prominent Republicans
and businesspeople, some of whom were involved before but others who are new,
helped in the effort both financially and politically.”
This is on top of a network of wealthy gay men and women who have a history of
giving money to philanthropic causes and in recent years have shifted much of
their effort to same-sex marriage.
Tim Gill, a billionaire software developer from Colorado, who is gay, has
assembled a network that has been likened to a gay version of Emily’s List,
which supports female candidates. Mr. Gill’s foundations have distributed over
$235 million to gay-related causes, with much going to promote same-sex
marriage, his advisers said.
“My husband and I are legally married in some states but obviously not married
in others, so that’s a pretty big focus,” Mr. Gill said.
David Bohnett, a co-founder of GeoCities and a gay philanthropist here, has
donated more than $4 million over the past 10 years to candidates and
organizations supporting same-sex marriage, his advisers said.
And this week, Freedom to Marry, a group that advocates same-sex marriage,
announced on Thursday a $3 million fund-raising campaign aimed at winning the
five ballot initiatives and pushing the New Jersey Legislature to override the
veto by Gov. Chris Christie of a same-sex bill, said Evan Wolfson, the founder
of Freedom to Marry.
The first $250,000 is coming from Chris Hughes, a founder of Facebook, and his
fiancé, Sean Eldridge. “Chris and I certainly prioritize in our contributing,”
Mr. Eldridge said. “Marriage is a top priority.”
Mr. Brown said the same-sex-marriage cause had been greatly helped by people
like Mr. Hughes. “A couple of billionaires go a long way,” he said. But Mr.
Wolfson said the “vast majority” of donations came from small donors.
The broadening of the coalition also reflects a concerted effort by backers of
same-sex marriage to put straight and Republican supporters out front.
“Prominent straight people from entertainment were crucial,” said Dustin Lance
Black, an Oscar-winning screenwriter who wrote “8,” a play re-enacting the
courtroom challenge to Proposition 8. “We wanted people who were not the usual
suspects.”
A reading of Mr. Black’s play here, which raised more than $2 million, was
notable for the participation of screen idol-type American actors like George
Clooney and Brad Pitt, who historically would have steered clear of this kind of
production. Norman Lear, the television producer, wrote a $100,000 check even
before Mr. Geffen had made his commitment. “It was the right moment and the
right way to go,” he said.
Ian Lovett
contributed reporting from Los Angeles,
New York State has made a powerful and principled choice by
giving all couples the right to wed and enjoy the legal rights of marriage. It
is a proud moment for New Yorkers, thousands of whom took to the streets on
Sunday to celebrate this step forward. But this moment does not erase the
bigotry against gays and lesbians enshrined in the federal Defense of Marriage
Act, which denies federal recognition of same-sex marriages and allows any state
to refuse to recognize another state’s unions.
Though there was unnecessary secrecy in the negotiations, Gov. Andrew Cuomo made
a determined effort to achieve marriage equality in New York. He shares credit
with the four Republican state senators who bucked their party and threats from
conservatives to do what they knew was right. State Senators James Alesi, Roy
McDonald, Mark Grisanti and Stephen Saland, all from upstate districts, deserve
the support of their communities. They showed the kind of strength that is
extremely hard to find in today’s politics.
In drafting a compromise, however, Senator Saland and other Republicans insisted
on language that carves out exceptions for religious institutions and
not-for-profit corporations affiliated with those religious entities. That
provision allows those tax-exempt entities to refuse to marry a same-sex couple
or to allow the use of their buildings or services for weddings or wedding
parties. There was simply no need for these exemptions, since churches are
protected under both the federal Constitution and New York law from being
required to marry anyone against their beliefs. Equally troubling, an
“inseverability clause” in the act appears to make it impossible for any court
to invalidate part of the law without invalidating the whole law — raising
questions about what happens to couples during an appeal.
While some civil rights advocates are optimistic that these provisions are
relatively minor, we are deeply troubled by their discriminatory intent. The
whole purpose of this law should be to expand civil rights without shedding
other protections in the process.
The marriage equality law was such a powerful finale to this year’s legislative
session that a few other important measures may be relegated to the footnotes.
Lawmakers passed a limited ethics bill for legislators and statewide elected
officials, a modest expansion of rent regulations for millions of New York City
residents, an important five-year tuition plan for the state’s universities —
all moves in the right direction.
The one big misstep is a property-tax cap of about 2 percent a year that will
severely hurt schools and services in poorer communities.
This legislative session will be remembered for New York’s acceptance of
same-sex marriage, a milestone in the national fight for this fundamental
freedom. Five other states, along with the District of Columbia, allow same-sex
couples to marry. But more than three dozen states define marriage as between a
man and a woman. For gays and lesbians, the battle for freedom from
discrimination continues.
June 24, 2011
The New York Times
By NICHOLAS CONFESSORE
and MICHAEL BARBARO
ALBANY — Lawmakers voted late Friday to legalize same-sex
marriage, making New York the largest state where gay and lesbian couples will
be able to wed and giving the national gay-rights movement new momentum from the
state where it was born.
The marriage bill, whose fate was uncertain until moments before the vote, was
approved 33 to 29 in a packed but hushed Senate chamber. Four members of the
Republican majority joined all but one Democrat in the Senate in supporting the
measure after an intense and emotional campaign aimed at the handful of
lawmakers wrestling with a decision that divided their friends, their
constituents and sometimes their own homes.
With his position still undeclared, Senator Mark J. Grisanti, a Republican from
Buffalo who had sought office promising to oppose same-sex marriage, told his
colleagues he had agonized for months before concluding he had been wrong.
“I apologize for those who feel offended,” Mr. Grisanti said, adding, “I cannot
deny a person, a human being, a taxpayer, a worker, the people of my district
and across this state, the State of New York, and those people who make this the
great state that it is the same rights that I have with my wife.”
Senate approval was the final hurdle for the same-sex marriage legislation,
which was approved last week by the Assembly. Gov. Andrew M. Cuomo signed the
measure at 11:55 p.m., and the law will go into effect in 30 days, meaning that
same-sex couples could begin marrying in New York by late July.
Passage of same-sex marriage here followed a daunting run of defeats in other
states where voters barred same-sex marriage by legislative action,
constitutional amendment or referendum. Just five states currently permit
same-sex marriage: Connecticut, Iowa, Massachusetts, New Hampshire and Vermont,
as well as the District of Columbia.
At around 10:30 p.m., moments after the vote was announced, Mr. Cuomo strode
onto the Senate floor to wave at cheering supporters who had crowded into the
galleries to watch. Trailed by two of his daughters, the governor greeted
lawmakers, and paused to single out those Republicans who had defied the
majority of their party to support the marriage bill.
“How do you feel?” he asked Senator James S. Alesi, a suburban Rochester
Republican who voted against the measure in 2009 and was the first to break
party ranks this year. “Feels good, doesn’t it?”
The approval of same-sex marriage represented a reversal of fortune for
gay-rights advocates, who just two years ago suffered a humiliating defeat when
a same-sex marriage bill was easily rejected by the Senate, which was then
controlled by Democrats. This year, with the Senate controlled by Republicans,
the odds against passage of same-sex marriage appeared long.
But the unexpected victory had a clear champion: Mr. Cuomo, a Democrat who
pledged last year to support same-sex marriage but whose early months in office
were dominated by intense battles with lawmakers and some labor unions over
spending cuts.
Mr. Cuomo made same-sex marriage one of his top priorities for the year and
deployed his top aide to coordinate the efforts of a half-dozen local gay-rights
organizations whose feuding and disorganization had in part been blamed for the
defeat two years ago.
The new coalition of same-sex marriage supporters brought in one of Mr. Cuomo’s
trusted campaign operatives to supervise a $3 million television and radio
campaign aimed at persuading several Republican and Democratic senators to drop
their opposition.
For Senate Republicans, even bringing the measure to the floor was a freighted
decision. Most of the Republicans firmly oppose same-sex marriage on moral
grounds, and many of them also had political concerns, fearing that allowing
same-sex marriage to pass on their watch would embitter conservative voters and
cost the Republicans their one-seat majority in the Senate.
Leaders of the state’s Conservative Party, whose support many Republican
lawmakers depend on to win election, warned that they would oppose in
legislative elections next year any Republican senator who voted for same-sex
marriage.
But after days of contentious discussion capped by a marathon nine-hour
closed-door debate on Friday, Republicans came to a fateful decision: The full
Senate would be allowed to vote on the bill, the majority leader, Dean G.
Skelos, said Friday afternoon, and each member would be left to vote according
to his or her conscience.
“The days of just bottling up things, and using these as excuses not to have
votes — as far as I’m concerned as leader, it’s over with,” said Mr. Skelos, a
Long Island Republican who voted against the bill.
Just before the marriage vote, lawmakers in the Senate and Assembly approved a
broad package of major legislation that constituted the remainder of their
agenda for the year. The bills included a cap on local property tax increases
and a strengthening of New York’s rent regulation laws, as well as a five-year
tuition increase at the State University of New York and the City University of
New York.
But Republican lawmakers spent much of the week negotiating changes to the
marriage bill to protect religious institutions, especially those that oppose
same-sex weddings. On Friday, the Assembly and the Senate approved those
changes. But they were not enough to satisfy the measure’s staunchest opponents.
In a joint statement, New York’s Catholic bishops assailed the vote.
“The passage by the Legislature of a bill to alter radically and forever
humanity’s historic understanding of marriage leaves us deeply disappointed and
troubled,” the bishops said.
Besides Mr. Alesi and Mr. Grisanti, the four Republicans who voted for the
measure included Senators Stephen M. Saland from the Hudson Valley area and Roy
J. McDonald of the capital region.
Just one lawmaker rose to speak against the bill: Rubén Díaz Sr. of the Bronx,
the only Democratic senator to cast a no vote. Mr. Díaz, saying he was offended
by the two-minute restrictions set on speeches, repeatedly interrupted the
presiding officer who tried to limit the senator’s remarks, shouting, “You don’t
want to hear me.”
“God, not Albany, has settled the definition of marriage, a long time ago,” Mr.
Díaz said.
The legalization of same-sex marriage in the United States is a relatively
recent goal of the gay-rights movement, but over the last few years, gay-rights
organizers have placed it at the center of their agenda, steering money and
muscle into dozens of state capitals in an often uphill effort to persuade
lawmakers.
In New York, passage of the bill reflects rapidly evolving sentiment about
same-sex unions. In 2004, according to a Quinnipiac poll, 37 percent of the
state’s residents supported allowing same-sex couples to wed. This year, 58
percent of them did. Advocates moved aggressively this year to capitalize on
that shift, flooding the district offices of wavering lawmakers with phone
calls, e-mails and signed postcards from constituents who favored same-sex
marriage, sometimes in bundles that numbered in the thousands.
Dozens more states have laws or constitutional amendments banning same-sex
marriage. Many of them were approved in the past few years, as same-sex marriage
moved to the front line of the culture war and politicians deployed the issue as
a tool for energizing their base.
But New York could be a shift: It is now by far the largest state to grant legal
recognition to same-sex weddings, and one that is home to a large, visible and
politically influential gay community. Supporters of the measure described the
victory in New York as especially symbolic — and poignant — because of its rich
place in the history of gay rights: the movement’s foundational moment, in June
1969, was a riot against police inside the Stonewall Inn, a bar in the West
Village.
In Albany, there was elation after the vote. But leading up to it, there were
moments of tension and frustration. At one point, Senator Kevin S. Parker, a
Brooklyn Democrat, erupted when he and other supporters learned they would not
be allowed to make a floor speech.
“This is not right,” he yelled, before storming from the chamber.
During a brief recess during the voting, Senator Shirley L. Huntley, a Queens
Democrat who had only recently come out in support of same sex marriage, strode
from her seat to the back of the Senate chamber to congratulate Daniel J.
O’Donnell, an openly gay Manhattan lawmaker who sponsored the legislation in the
Assembly.
They hugged, and Assemblyman O’Donnell, standing with his longtime partner,
began to tear up.
“We’re going to invite you to our wedding,” Mr. O’Donnell said. “Now we have to
figure out how to pay for one.”
Until Wednesday, the thousands of same-sex couples who have married did so
because a state judge or Legislature allowed them to. The nation’s most
fundamental guarantees of freedom, set out in the Constitution, were not part of
the equation. That has changed with the historic decision by a federal judge in
California, Vaughn Walker, that said his state’s ban on same-sex marriage
violated the 14th Amendment’s rights to equal protection and due process of law.
The decision, though an instant landmark in American legal history, is more than
that. It also is a stirring and eloquently reasoned denunciation of all forms of
irrational discrimination, the latest link in a chain of pathbreaking decisions
that permitted interracial marriages and decriminalized gay sex between
consenting adults.
As the case heads toward appeals at the circuit level and probably the Supreme
Court, Judge Walker’s opinion will provide a firm legal foundation that will be
difficult for appellate judges to assail.
The case was brought by two gay couples who said California’s Proposition 8,
which passed in 2008 with 52 percent of the vote, discriminated against them by
prohibiting same-sex marriage and relegating them to domestic partnerships. The
judge easily dismissed the idea that discrimination is permissible if a majority
of voters approve it; the referendum’s outcome was “irrelevant,” he said,
quoting a 1943 case, because “fundamental rights may not be submitted to a
vote.”
He then dismantled, brick by crumbling brick, the weak case made by supporters
of Proposition 8 and laid out the facts presented in testimony. The two
witnesses called by the supporters (the state having bowed out of the case) had
no credibility, he said, and presented no evidence that same-sex marriage harmed
society or the institution of marriage.
Same-sex couples are identical to opposite-sex couples in their ability to form
successful marital unions and raise children, he said. Though procreation is not
a necessary goal of marriage, children of same-sex couples will benefit from the
stability provided by marriage, as will the state and society. Domestic
partnerships confer a second-class status. The discrimination inherent in that
second-class status is harmful to gay men and lesbians. These findings of fact
will be highly significant as the case winds its way through years of appeals.
One of Judge Walker’s strongest points was that traditional notions of marriage
can no longer be used to justify discrimination, just as gender roles in
opposite-sex marriage have changed dramatically over the decades. All marriages
are now unions of equals, he wrote, and there is no reason to restrict that
equality to straight couples. The exclusion of same-sex couples from marriage
“exists as an artifact of a time when the genders were seen as having distinct
roles in society and in marriage,” he wrote. “That time has passed.”
To justify the proposition’s inherent discrimination on the basis of sex and
sexual orientation, he wrote, there would have to be a compelling state interest
in banning same-sex marriage. But no rational basis for discrimination was
presented at the two-and-a-half-week trial in January, he said. The real reason
for Proposition 8, he wrote, is a moral view “that there is something wrong with
same-sex couples,” and that is not a permissible reason for legislation.
“Moral disapproval alone,” he wrote, in words that could someday help change
history, “is an improper basis on which to deny rights to gay men and women.”
The ideological odd couple who led the case — Ted Olson and David Boies, who
fought against each other in the Supreme Court battle over the 2000 election —
were criticized by some supporters of same-sex marriage for moving too quickly
to the federal courts. Certainly, there is no guarantee that the current Supreme
Court would uphold Judge Walker’s ruling. But there are times when legal
opinions help lead public opinions.
Just as they did for racial equality in previous decades, the moment has arrived
for the federal courts to bestow full equality to millions of gay men and
lesbians.
August 4, 2010
The New York Times
By JOHN SCHWARTZ
A federal judge’s forceful opinion Wednesday in favor of same-sex marriage is
only the beginning of a process that is likely to go all the way to the United
States Supreme Court.
The ultimate outcome of the California case cannot be predicted, but appeals
court judges and the justices at the highest court in the land could find
themselves boxed in by the careful logic and structure of Judge Vaughn R.
Walker’s opinion, legal experts said.
In his ruling, Judge Walker found that California’s voter-approved ban on
same-sex marriage irrationally discriminates against gay men and women.
To opponents of same-sex marriage, the ruling was a travesty that usurped the
will of millions of California voters. Brian S. Brown, the executive director of
the National Organization for Marriage, called it "a horrendous decision" that
"launched the first salvo in a major culture war over same-sex marriage and the
proper purview of the courts."
But Andrew Koppelman, a professor at Northwestern Law School, said "if the
Supreme Court does not want to uphold same-sex marriage, its job has been made
harder by this decision."
The reason, he said, is that while appeals courts often overturn lower-court
judges on their findings of law -- such as the proper level of scrutiny to apply
to Proposition 8 -- findings of fact are traditionally given greater deference.
“They are supposed to take as true facts found by the district court, unless
they are clearly erroneous," he said. "This opinion shows why district courts
matter, even though the Supreme Court has the last word."
And to that end, Judge Walker’s 136-page opinion lays a rich factual record,
with extensive quotation of expert testimony from the lengthy trial. The 2008
initiative campaign to ban same-sex marriages was suffused, the judge said, with
moral comparisons of these unions and heterosexual marriage, with the clear
implication that "denial of marriage to same-sex couples protects children" and
that "the ideal child-rearing environment" requires marriage between a man and a
woman.
Judge Walker wrote, however, that the Supreme Court has stated that government
cannot enforce moral or religious beliefs without an accompanying secular
purpose. The judge suggested that the defendants shifted their arguments for the
courtroom, with a focus on "statistically optimal" child-rearing households and
by arguing that they were abiding by the will of California voters.
California’s law, he wrote, demanded discrimination on the basis of sex and
sexual orientation. "Proposition 8 places the force of law behind stigmas
against gays and lesbians," he wrote, including the notion that "gays and
lesbians are not as good as heterosexuals" and "gay and lesbian relationships do
not deserve the full recognition of society."
In his ruling, Judge Walker took a conservative approach to his findings of law,
said Erwin Chemerinsky, the dean of the University of California, Irvine School
of Law. Judge Walker laid the factual groundwork that might have allowed him to
invoke the tough "strict scrutiny" test to Proposition 8 -- a test that most
laws flunk.
"His decision does not depend on the higher court finding strict scrutiny," he
said, a legal finding that a higher court might well overturn. Instead, he
subjected the law to a lower standard that many laws can pass, but that this
one, in his opinion, does not.
"He finds it doesn’t even meet rational basis review" for the legal distinction
between same-sex marriage and heterosexual unions, Professor Chemerinsky said.
Even some of those who applauded the opinion, however, said the path ahead for
it is not clear or easy. Associate Professor Doug NeJaime at Loyola Law School,
Los Angeles said while Judge Walker’s ruling he found "a great opinion," he was
skeptical of the strategy to take a marriage case through the federal courts.
Despite Judge Walker’s efforts to set a factual foundation and the traditions of
deference, he said, the Supreme Court is not completely constrained by lower
court findings of fact.
"We’ve seen time and time again that the Supreme Court can do whatever it wants"
with the factual record, and "I don’t see five justices on the Supreme Court
taking Judge Walker’s findings of fact to the place that he takes them."
Professor NeJaime suggested the case might turn on the Court’s traditional swing
vote, Anthony M. Kennedy, who has shaped decisions that strike down laws that
discriminate against gays and lesbians. The rational basis test used by Judge
Walker is in line with the standard used by Justice Kennedy in such cases as
Lawrence v. Texas, which struck down a state sodomy law. By structuring an
opinion that allows the Court to use the lower level of scrutiny, Judge Walker
"is speaking to Justice Kennedy," he said.
Professor Jesse H. Choper, a professor of law at the University of California,
Berkeley, said that it is too soon to tell which way Justice Kennedy might come
down on the issue of same-sex marriage. "I have no way of predicting how he’d
come down on this and I don’t think he does, either, at this point."
Ultimately, Professor NeJaime said, even the four more liberal justices on the
Court might shy away from a sweeping decision that could overturn same-sex
marriage bans across the country. "The Supreme Court rarely likes to get too far
ahead of things," he said.
Reverend Jim Garlow, pastor of Skyline Church in La Mesa, Calif., and a leading
supporter of Proposition 8, agreed.
"Given the present makeup of the Supreme Court at this time, ’one woman, one
man’ will stand," he said.
And that is why Professor Chemerinsky said "this is a huge victory for the
supporters of marriage equality -- but it’s not the last word."
For 14 years, as states, courts and many Americans began to change their
minds on the subject, the federal government has clung to its official
definition of marriage as only between a man and a woman. On Thursday, a federal
judge in Massachusetts finally stood up and said there was never a rational
basis for that definition. Though we are a little wary of one path Judge Joseph
L. Tauro took to declare the definition unconstitutional, the outcome he reached
is long overdue.
The definition is contained in the Defense of Marriage Act, signed by President
Bill Clinton in 1996. At the time, there was no legal same-sex marriage in the
United States, but now five states and the District of Columbia issue licenses
to all couples. Because of the federal law, thousands of couples in those states
cannot receive the same federal benefits as opposite-sex couples, including
Social Security survivor payments and spousal burials in national military
cemeteries.
There were two cases that came before Judge Tauro on this subject, allowing him
to arrive at the same conclusion in two different ways. In one case, brought by
Martha Coakley, the Massachusetts attorney general, the judge said the marriage
act exceeded Congress’s powers and infringed on the state’s right to regulate
marriage. This does not appear to be a legitimate basis for overturning the act.
Many of the biggest federal social programs — including the new health care law
— deal with marriages and families, as the Yale law professor Jack Balkin noted
on Thursday, and states should not be given the right to supersede them.
The judge made a better argument in the other case, brought by a gay rights
group, that the marriage definition violates the equal-protection provisions of
the Constitution. There is no rational basis for discriminating against same-sex
couples, he ruled, discrediting the reasons stated by lawmakers in 1996,
including the encouragement of “responsible procreation” and traditional notions
of marriage and morality. In this argument, he was helped by the Obama
administration’s obligatory but half-hearted defense of the law, which since
last year no longer supports Congress’s stated reasons.
Courts should generally give Congress wide deference in writing laws, but should
not be afraid to examine them when challenged, to make sure they serve a
legitimate purpose. The Defense of Marriage Act was passed and signed as an
election-year wedge issue, and the brief debate leading up to it was full of
bigoted attacks against homosexuality as “depraved” and “immoral.” One
congressman said gay marriage would “devalue the love between a man and a
woman.” Laws passed on this kind of basis deserve to be upended, and we hope
Judge Tauro’s equal-protection opinion, which, for now, applies only to
Massachusetts, is upheld on appeal.
Justice Antonin Scalia of the Supreme Court actually predicted this moment would
arrive when he dissented from the court’s 2003 decision to strike down
antisodomy laws. That decision left laws prohibiting same-sex marriage “on
pretty shaky grounds,” he warned, since it undercut the traditional moral basis
for opposing homosexuality. The Justice Department cited those words when it
abandoned its defense of the law as related to procreation, which, in turn,
helped lead to Thursday’s decision. The process of justice can take years, but
in this case it seems to be moving in the right direction.
