Earlier this week, in the hearing before the United Sates Supreme Court challenging the constitutionality of the 1996 Act of Congress that defined marriage solely as the union of a man and a woman, Associate Justice Elena Kagan read the Congressional rational for the law directly from the Report issued by the House of Representative. She stated, “What happened in 1996 is that ‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.’”
The so-called Defense of Marriage Act (DoMA) was predicated on animus – that is, on an usually prejudiced and often spiteful or malevolent ill will toward one particular group of individuals – toward homosexuals.
It was with animus in 1996 that the members of Congress wrote and overwhelmingly approved DoMA. It would be with animus now in 2013 if the Supreme Court were to allow the Federal Government to continue to treat gay men and women as less than equal citizens – as less than entitled to enjoy the same rights to marriage as every other citizen in the United States of America. I cannot fathom how any one of the Justices on the Court could or would allow such inequity to persist. We shall have to wait to read their rationales in their opinions.
But there’s more, much more.
Animus toward gays and lesbians is alive and well in marriage laws throughout the individual states of the United States, not just at the Federal level. In 41 states, gay men and women are expressly excluded from the rights to marriage. In 41 states, gay men and women are legally robbed of the right to marry the person they love – exclusively because they are gay. The laws reserve the right to marriage to straight couples only. And by-and-large, the states are perfectly within their rights to do so. The laws governing marriage have always been the prevue of the individual states…BUT then there was that one monumental exception!
In 1967, the Supreme Court stepped in to strike down the last vestige of animus towards mixed-raced couples and declared that they, like any other American citizens, had the right to marry – that regardless of the laws in 16 individual states prohibiting mixed-race marriages at the time, their right to marry was protected under the Constitution of the United States. On that day in 1967, the Supreme Court ruled that it was unconstitutional to deny mixed-race couple a marriage license.
In 2013, in over three-quarters of our states, gay men and women are still denied a marriage license. They are still legally prohibited from marrying the person they love simply because they are gay. Why is it not time for the Supreme Court to step in and strike down this vestige of animus towards gay American citizens, even if it is unpalatable to the individual states?
Some of the conservative Justices rationalize their resistance (read: refusal) to rule on the constitutionality of these state laws by implying that same-gender marriage is a social experiment, and suggesting that they need more data before making any broad legal decisions.
A social experiment! The United States is a social experiment. That all men are created equal is a social experiment. That we are endowed by our creator with certain inalienable rights, and among these are life, liberty and the pursuit of happiness is a social experiment. The Fourteenth Amendment – equal protection under the law for all citizens – is a social experiment. And they all seem to work, more or less, in the United States of America unless, if by accident of birth, you are born gay, in which case certain Justices would have us believe that law-makers are entitled to make an exception until we, they, get more data.
What data? Your Honors, what empirical evidence is going to satisfy your need for more data before you rule that barring same-gender marriage is unconstitutional? How can the states’ barring marriage to same-gender American citizens be constitutional today and unconstitutional tomorrow? It sounds to me as if you are saying to America that we need to wait for your permission – that we need to wait for you to overcome your personal discomfort or distaste of the idea of two men or two women in a loving and lifelong relationship. That is not your prerogative. Your personal discomfort and distaste cannot and should not be the basis of your jurisprudence. States being allowed to bar same-gender marriage is either protected under the Constitution of the United States, or it is not. Your predicting your decision on your personal taste is just another form of animus.
In the history of the United States, we have had plenty of animus in laws that have robbed American citizens of their dignity and their rights to be full and equal participants in our great American experiment. If we aspire to move ever closer to forming a more perfect union, less animus and more equality will be the better path to take. Your Honors, a majority of your predecessors on the Court in 1967 directed entrenched, racist states down the path of equality. They did not give those states an out, or wait for more data. I trust and hope that among you, a forward-looking majority can and will direct the homophobic states of today down that same path of equality for the sake of our forming a more perfect union tomorrow.