From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published on Slate on June 26th:
There’s no question that today’s decision striking down the Defense of Marriage Act on equal protection grounds is sweeping and historic. There is a unique feature of the 40-year gay marriage debate that makes the question of history and historical evolution particularly important: Unlike racial segregation, to which anti-gay laws are often compared, the traditional restriction of marriage to opposite-sex couples was not designed, in and of itself, to denigrate or harm same-sex couples. No matter how angry pro-gay advocates may rightly feel toward those who oppose our equality, it seems fair, at first blush, to concede that restricting marriage to straights was not exactly a malicious or irrational act based on nothing but animus against gay people. But none of that means DOMA was constitutional. Whatever the dissenters may say, each generation should interpret the meaning of a law as it applies in that generation’s own time.
Charles Cooper’s strategy in defending Prop 8 (which was dismissed today for lack of standing) was simply to claim that that 2008 gay marriage ban could only be found unconstitutional if “no rational, thoughtful person of goodwill could possibly disagree with [the plaintiffs] in good faith on this agonizingly difficult issue.” Citing the Supreme Court’s unanimous dismissal in 1972 of one of the earliest challenges to a gay marriage ban, inBaker v. Nelson, Cooper said at argument this March that “it seems implausible in the extreme, frankly,” that nine justices would have then refused to hear that case if banning gay marriage “is irrational and can only be explained … as a result of anti-gay malice and a bare desire to harm.”
In other words, echoing Judge Scalia’s focus in his Lawrence v. Texas dissent on the “ancient roots” of anti-gay sentiment embodied in law, defenders of gay marriage bans would have you believe that the current laws against gay equality couldn’t possibly reflect prejudice since the age-old institution of heterosexual marriage emerged organically, for the sake of family and child-rearing, not to single out and punish a disfavored group.
The trouble is that’s a wholly ahistorical way to look at these cases. For starters, Baker v. Nelson was dismissed at a time when, as Justice Ginsburg pointed out at argument, gay sex was still criminal in numerous states. A second strike against champions of the “ancient roots” approach is the scholarly brief that helped sway the justices to strike down state sodomy bans in Lawrence v. Texas exactly 10 years ago today. That brief (a rare example of the crucial role scholarship can play in the real world) demonstrated that the court had (now infamously) upheld state laws criminalizing sodomy in 1986 in part by assuming that such laws had a deep history—without making sure that was actually true. “Far from possessing ‘ancient roots,’ American laws targeting same-sex couples did not develop until the last third of the 20th century,” the court finally said in Lawrence, relying on that important brief. This helped lead to Justice Kennedy’s poignant recognition, for the majority in Lawrence, that a proper understanding of our thinking about sex has shifted over time, revealing “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
Today it is Scalia who plays the role on the court of publically objecting to this evolution. He distinguishes between the right of We the People to evolve and what he sees as the court’s obligation to hold back from doing so. To him, as an originalist, the justices are not also people who might also consider the march of history in their decisions. “We have no power to decide this case,” he complains in his dissent, “and even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.” He calls the decision a “jaw-dropping” assertion of “judicial supremacy over the people’s Representatives in Congress and the Executive.”
Here’s the problem with all this originalist bluster. The laws being challenged here—and throughout the modern gay rights movement—do not date back to ancient times. They were passed recently. The Defense of Marriage Act was enacted in 1996. By then, more people were coming to understand that gay people weren’t a dangerous menace. That’s key, because it means DOMA and other laws of its ilk are properly evaluated based on whether they could have had a rational relationship to an important government interest in the late 20th century, not in ancient times.
During arguments in the DOMA case, Justice Kagan lit into Paul Clement, the lawyer defending the statute, as he tried to claim Congress passed it merely to promote “uniformity” among the states and “democratic self-governance.” Kagan asked if he really thought that “Congress was doing this for uniformity reasons” or “do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?” She clinched her argument by quoting from the House Report explaining the rationale for DOMA: “Congress decided to ‘reflect and honor a collective moral judgment’ and to express ‘moral disapproval of homosexuality.’ ”
And there you had it. The law’s backers actually wrote down their moral disapproval—their prejudice and animus—for all to see.
Today’s ruling reflects the growing public understanding that DOMA and other laws that treat gay people unequally, while they may echo long-standing beliefs, now simply lash out at one group for no good reason: “DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” This is not OK. “The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”
At argument, Justice Scalia asked a quite reasonable question of Ted Olson, the lawyer challenging California’s gay marriage ban: “When did it become unconstitutional to exclude homosexual couples from marriage?” Once upon a time, it probably wasn’t. And Scalia believes that should remain the answer forever.
But Olson didn’t miss a beat: “We’ve learned to understand more about sexual orientation and what it means to individuals,” he said, quoting a line from Ginsburg: “A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.” Edith Windsor, the 83-year-old plaintiff in the DOMA case, added afterward, talking to the press: “As we increasingly came out, people saw that we didn’t have horns. … It just grew to where we were human beings like everybody else.” As of today, a majority of Americans, and a majority of the Supreme Court, have recognized this essential humanity of gay people. If history is any guide, their numbers will only grow.