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Column - Stephen Henderson: Justice Scalia got it right on gay marriage 10 years ago


August 24. 2013 8:44PM
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Of all people, it was Justice Antonin Scalia, who, back in 2003, really set the stage for this week’s U.S. Supreme Court arguments about gay marriage.



In his dissent in Lawrence v. Texas, the ruling that finally established the proposition that private, consensual sex between two adults was none of the government’s business, Scalia warned that the court was poised to “impose” gay marriage on the nation.



“Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned,” Scalia wrote.



“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘(t)he liberty protected by the Constitution’?”



The simple truth



He’s right. He was right then, when his rant (which included a full-throated defense of anti-gay bigotry) concluded the first term I spent covering the high court.



And he’s right now, 10 years later, after so many barriers to gay equality have been smashed on the backs of the Lawrence ruling, and after some states have, indeed, extended that equality to marriage, one of the most fundamental human rights recognized by our government.



The simple truth is that under our Constitution, neither the government nor the people, through their government, can single out a class of Americans, based on nothing more than who they are, and deny them rights that are recognized for everyone else.



It’s OK to think gay people are bad, or wrong, or even disgusting. That’s your right as an American. But in America, it’s not OK to deny gay people fundamental rights — like marriage — based on those thoughts. Everyone is equal under the law.



That’s why the justices should strike down California’s Proposition 8, a voter referendum that overturned gay marriage in that state. And it’s why the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages for the purpose of federal benefits, is unconstitutional. Both issues, before the court this week, should elicit rulings that are the logical conclusion of Lawrence.



But don’t expect that to happen.



The cases are more complicated, and offer the justices ways to skirt the issue entirely. And the justices are, quite properly, hesitant to get too far out in front of the people, and the more democratic ways of ensuring equality.



Judicial fiats are unpopular, and rare, for good reason. Even when they are for the right cause, as would be the case for gay marriage, they threaten the balance of power outlined in our Constitution, which endows the democratic branches of government with more power.



Progress toward gay equality



And over the past decade, in the wake of Lawrence, the trajectory toward gay equality, under the law, has been gaining speed and momentum with each small victory.



The first was the 2004 ruling by Massachusetts’ highest court that made it the first state to recognize gay marriage. In Goodridge v. Department of Public Health, the U.S. Supreme Court’s ruling in Lawrence was extended (just as Scalia had feared) to the issue of marriage. The Massachusetts court concluded that the denial of gay marriage rights was tied to discriminatory intent, and lacked any connection to legitimate government regulation.



The Massachusetts ruling also laid waste to the argument that the distinction between gay and straight marriages rested in procreation: “In this case, we are confronted with an entire, sizable class of parents raising children who have absolutely no access to civil marriage and its protections, because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation,” the court wrote.



Goodridge was followed by several other states legalizing gay marriage (and, of course, a reactionary trend of states outlawing it), and the landscape today is much, much different.



That’s to say nothing of the cultural revolution in which gay relationships are seen, popularly and critically, as much more mainstream. Television and movies are just the tip of that radical change. President Barack Obama probably capped the cultural shift in his second inaugural address, which was the first in history to reference gay marriage rights alongside other treasured freedoms for women and racial minorities.



So while the justices may be reluctant to push the march to gay equality to its logical conclusions, it’s undeniably true that the court played a pivotal, important role in propelling that march to its current point with the Lawrence ruling 10 years ago.



The people are starting to get it. And it’s happening quickly. The government has no business denying marriage equality on the basis of sexual orientation. That’s unconstitutional — and un-American.



Scalia, fearful and disdainful as he was in Lawrence, had it absolutely right.



Stephen Henderson is editorial page editor of the Free Press. Contact Henderson at shenderson600@freepress.com or at 313-222-6659.





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