How swiftly we change. Remember back to 1996. The great bipartisan fear among the political class was that in some faraway state, a chance group of socially active leftist judges would sift through their state’s laws and find, somewhere, a universal right to marriage. They would rule, these yet imaginary judges, that if marriage was a right of heterosexuals the state could not deny without good reason, then by logic it could not deny that right to homosexuals, without good reason, and they wouldn’t be able to find a reason. Then, with gay marriage legalized by judicial fiat in one state, by the federal Constitution’s Article IV, all other states would be required to give “full faith and credit” to that marriage contract, which would challenge moral norms society had held for millennia, which in turn would set off a political civil war with morality the central focus. What a nightmare that would be, or so they thought.
Which explains why in that year the federal Defense of Marriage Act was so easily passed, with support from politicians far and wide. The act purported to give states the right to refuse to recognize same-sex marriages approved in other states. As a sidelight, its Section 3 denied recognition of same-sex marriage in federal law, and therefore denied tax and pension benefits to legally married same-sex couples, which at the time existed mostly in public imagination. The measure was heartily approved by a broad swath of the Congress, including such socially conscious liberals as Washington’s Sen. Patty Murray, and was swiftly signed by the always politically sensitive President Bill Clinton.
Many of these people cheered and sent joyous emails Wednesday as the Supreme Court smashed the key section of the act they once endorsed. (“Today is a day of joy for all of the loving, committed LGBT couples across America, including the more than 2,400 couples who married in my home state of Washington this year, and for all of us who respect and support them,” wrote Sen. Murray.)
They may seem hypocrites, given the power of political hindsight, but they are not. They just changed with the rest of us. Allowing same-sex couples to cement their loving relationships and share the benefits they provide, now seems right and good and just to the majority in this state and in many others. To deny our friends and neighbors the benefits of lifelong affection seems cruel and inhumane. “The state’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import,” wrote Justice Anthony Kennedy in his majority opinion. DOMA, he said, was motivated by “animus.” “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status and so a stigma upon all who enter into same-sex marriage made lawful by the unquestioned authority of the states,” he wrote.
It is a sensible ruling, a just ruling and I would have been disappointed had it not come about. Kennedy’s language is sharp and accusatory but his basic premise is correct. The right to define marriage belongs to the states. It always has. There is nothing among the enumerated powers of Congress that lets it impose its definition. The federal government has no cause to ignore marriages the states recognize. “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. … The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the state sought to dignify,” wrote Kennedy.
That this ruling fails to shock, that it would have shocked us had it come out differently, tells us something about our own changing moral norms and expectations. We can be happy for the people this ruling affects. That is the desire of the majority in this state, and we can be comfortable with that.
Tracy Warner’s column appears Thursdays and Fridays. He can be reached at firstname.lastname@example.org or 665-1163.