Supreme Court takes up gay marriage: what the justices have to decide
The main question before the Supreme Court is not whether the Constitution protects gay marriage, but whether Prop. 8 and DOMA discriminate in violation of the 14th Amendment.
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Or will the court conclude that same-sex couples are entitled to no special protection when challenging measures that seek to uphold a definition of marriage that has prevailed – largely unchallenged – for much of civilized history.Skip to next paragraph
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In addition, the court must decide whether the government has a justifiable reason to treat male-female married couples differently than married couples of the same sex.
Traditionally, marriage has been accepted as an institution vital to the propagation of the human race. The ideal environment for that project was seen as an intact family unit with both biological parents serving as role models for their children.
But fertility and parenting skills were never prerequisites for marriage. And experience shows that same-sex married couples are just as capable as opposite-sex couples of raising adopted children as their own in a stable and loving home.
The trump card for traditionalists in the past was the argument that homosexual conduct violated society’s shared concept of sexual morality.
Justice Kennedy’s 2003 decision in Lawrence v. Texas eliminated that argument while invalidating a Texas law that criminalized sodomy for homosexuals but not for heterosexuals.
In that 6-3 decision, Kennedy said moral disapproval of a particular practice was not a sufficient reason to uphold a law prohibiting that practice.
In a dissent, Justice Antonin Scalia said the decision would undermine a range of laws based on morality, including against bigamy, adult incest, bestiality, and obscenity. He said it would also undercut any defense of the traditional definition of marriage.
“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,” Justice Scalia wrote in 2003.
At issue now – nine years later – is a string of judicial decisions in Massachusetts, New York, Connecticut, Arizona, and California striking down laws that draw distinctions between heterosexual and homosexual unions. In the process the courts are establishing new legal protections for same-sex couples, as well as for gay men and lesbians in general.
The decisions are the fruit of a concerted campaign by gay rights advocates to denounce marriage restrictions and those who support the restrictions as bigoted and irrational.
Gay rights advocates maintain that the American public will inevitably embrace same-sex marriage, in the same way that Americans embraced interracial marriage in the years following the high court’s 1967 decision in a case called Loving v. Virginia.
In the 15 years prior to that landmark decision by Chief Justice Earl Warren, 14 states repealed their bans on interracial marriage. By the time the issue arrived at the high court in 1967, only Virginia and 15 other states still had similar laws on the books.