A sudden convergence of events has pushed the issue of the place of gays and lesbians in American society to the top of the political agenda. The Episcopal Church’s election of a New Hampshire cleric as the denomination’s first openly gay bishop comes on the heels of a far-reaching Supreme Court gay rights decision and the rise of Democratic presidential contender Howard Dean, who signed the nation’s first civil unions bill to give gays and lesbians the same rights as heterosexual married couples.
The Episcopal Church’s House of Bishops voted Tuesday to elevate the Rev. V. Gene Robinson to bishop of New Hampshire after allegations of inappropriate conduct were investigated and dismissed.
On another front, the Massachusetts Supreme Judicial Court is expected to rule soon on whether to legalize gay marriage in that state. If the court OKs gay marriages in Massachusetts, it may lead to at least partial recognition by other states of gay marriages.
Gay rights advocates are hailing the spate of good news for their cause and are especially gratified by the Supreme Court’s June 26 decision that effectively struck down all state anti-sodomy laws.
Speaking shortly after that ruling, Elizabeth Birch, the executive director of the leading gay rights advocacy group, the Human Rights Campaign, said, “Every once in a while in the history of a people there is a monumental paradigm shift. ... it allows for a breakthrough to a deeper understanding to a nation as a whole. I believe we are in such a gay moment in terms of history.”
As unlikely as it once might have seemed, it was a Ronald Reagan appointee to the Supreme Court who, more than other person, triggered a series of events that may lead to legal recognition for gay marriages in every state.
Justice Anthony Kennedy wrote the broad language of the court’s decision in Lawrence v. Texas striking down anti-sodomy laws.
He said the liberty that is protected by the Fourteenth Amendment to the Constitution “gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
When a state criminalizes sodomy, it creates,” Kennedy said, “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” If, as Kennedy seems to be implying, states can’t discriminate against gays in the public sphere, then what basis can there be for a state ban on gay marriage?
Kennedy also explicitly referred to marriage and child-rearing, declaring, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
BASIS FOR FUTURE RULINGS?
Paul Smith, the lawyer who successfully argued Lawrence v. Texas before the court, said the ruling has “very strong language that can be used in the future to attack other forms of discrimination.”
Dissenting Justice Antonin Scalia warned that the Lawrence decision “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” Citing Scalia’s comment, Evan Wolfson, executive director of Freedom to Marry, a pro-may marriage group, said “When Scalia is right, it’s rare. But when he’s right, he’s right. We stand today on the threshold of winning the freedom to marry.”
Yale law professor William Eskridge, a gay rights activist and a scholar whose research on the history of homosexuals was cited in the court’s ruling, said, “Justice Scalia is right in the long term” that Lawrence v. Texas will add to the momentum for recognition of gay marriages.
Kennedy’s ruling, joined by four other justices, cast doubt on the constitutionality of the Defense of Marriage Act (DOMA), signed into law by President Clinton in 1996.
That statute says states can refuse to recognize same-sex marriages performed in other states. DOMA’s critics say it clashes with the Constitution’s Full Faith and Credit Clause, which says each state must honor legal agreements, contracts and judgements from other states.
Eskridge said, “DOMA is unconstitutional, but the Supreme Court will not dare say it in the near future — and they probably should not dare say it in the near future. DOMA’s unconstitutionality is an enterprise that we’ve got to work on state by state ... by having state laboratories that produce data and evidence which suggest that when marriages are recognized, God did not send the locusts.”
While the justices may not strike down DOMA in its entirety in the near future, Eskridge said, “a majority of the justices would be open to more localized challenges.”
WHAT MUST OTHER STATES DO?
If, for example, Massachusetts recognizes same-sex marriages, and Mr. Smith and Mr. Jones are a gay couple in that state whose marriage breaks up, there will be a separation agreement embodied in a divorce decree. “That decree probably does have to be recognized in other states,” Eskridge told MSNBC.com.
“If one of the parties wants to renege on the separation agreement embodied in the divorce decree and they move to another state and say, ‘I’m not bound by this,’ very probably under the Full Faith and Credit clause and as well as under state law, that party will have to stick with the divorce degree. In my opinion, it would be unconstitutional for Congress to say that the second state does not have to recognize a judgement in the first state. That’s where the initial lawsuits should be brought.”
Eskridge said the same reasoning would apply if one partner in a same-sex marriage dies and there is a probate decree that applies to property of the decedent.
“The legal principle throughout all of American history is that a marriage that is valid where celebrated will be valid elsewhere, even in a jurisdiction that would not have performed the marriage,” Wolfson said. States honor marriages from other states “because we don’t want couples to have to worry about whether they’re married or not depending on whether they’ve crossed the border.”
A gay-marriage ruling in Massachsuetts would create a classic debate over federalism: Must what is legal in Massachusetts also be the law in Missouri or Utah, even if the majority of voters in those states rejects gay marriage?
The issue will likely have reverberations in next year’s elections. Gay and lesbian marriage could be a tough issue to sell to conservative voters in the South and the Midwest. No Democrat has ever won the presidency without winning at least a few Southern states.
But some Democratic strategists say Republican candidates will be seen as spiteful “gay bashers” if they push measures to block gay marriage.
To forestall Supreme Court rulings or state court rulings that advance gay marriage, 76 members of the House, including six Democrats, are co-sponsoring the Federal Marriage Amendment, which says, “Marriage in the United States shall consist only of the union of a man and a woman.”
Wolfson denounced the proposed amendment as an attempt “to intimidate the courts from doing their job.”
He added the amendment would, if adopted, “write discrimination into the most important document we Americans have.” It is, he said, “playing with fire near our most precious and important document.”
Explaining why he believes same-sex marriage is worth fighting for, Wolfson said marriage “gets automatic respect, honor, recognition. ... Marriage more than any other single word is the inescapable, significant, powerful engine that will drive all the other gains that we care about.”
Another gay rights advocate, U.S. District Court Judge Deborah Batts, said, “We (gays and lesbians) could show heterosexuals who marry a whole lot if we were able to take on the institution of marriage and turn it into what we know it could be. ... We can show them what marriage is really worth and what it means.”
But Scalia predicted the court’s gay rights decision will cause “a massive disruption of the current social order.” The court, he argued, should not force its view of gay rights on the American people.
“The premise of our system is that those judgments are to be made by the people, and not imposed by a governing caste that knows best,” Scalia said.