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Opinion

Obama's DOMA shift: Why public embrace of gay marriage – and gays – is now certain

Obama’s stance against the Defense of Marriage Act is a key milestone in what looks increasingly like irreversible progress toward full social – and legal – acceptance of gays and lesbians.

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Historically, constitutional analysis of discrimination follows a consistent pattern. At one point discrimination is natural; no one thinks to challenge it. A ban on interracial marriage seems obviously justified. Women are excluded from the practice of law because of their “natural and proper timidity and delicacy,” as one Justice wrote in 1873. Homosexuality is deemed a mental disease, as it was by the American Psychiatric Association until 1973.

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Later, the discrimination seems less natural and more ideological. Older ideas about segregation or women’s proper roles leave the mainstream for the narrower confines of particular political views. Later still, they seem obviously wrong. Only kooks want to prohibit interracial marriage now, and any justice who based an opinion on women’s natural timidity would be impeached. At some point during this process – after discrimination has stopped seeming natural, but before it seems obviously illegitimate – the Supreme Court steps in to announce that this discrimination is presumptively unconstitutional and must face heightened scrutiny if it is to survive.

This is not activism on the part of the Court. It is a recognition that a national consensus has formed, that the ultimate outcome of the social struggle is no longer in doubt. By adopting heightened scrutiny and striking down the laws of states that persist in discrimination, the justices do not impose their views on the nation. They impose the views of the nation on a minority of outlier states – just what we would expect them to do in enforcing an amendment adopted to secure the national victory over minority states in the Civil War.

There is little doubt that this pattern is replaying itself with sexual orientation. Polls show steadily growing public support for gay rights, and stronger support among younger people.

But how far along are we? The Court usually prefers to wait for clear indications, in state laws or judicial decisions, that the national consensus is in place. In 1967, when it struck down state bans on interracial marriage in Loving v. Virginia, only 17 states still had them. In 2003, when it overturned same-sex sodomy bans in Lawrence v. Texas, they existed in 13 states.

Obama’s endorsement of heightened scrutiny puts the moral and legal authority of the executive branch behind the proposition that discrimination against gays and lesbians is inherently suspect, that sexual orientation bears no relation to one’s worth or ability to contribute to society. When the Supreme Court will take the step to heightened scrutiny is impossible to predict. But this statement by a coequal branch of the federal government surely brings the day closer.

Kermit Roosevelt III is a professor of law at the University of Pennsylvania Law School and the author of “The Myth of Judicial Activism.”

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