In two rulings Wednesday, the US Supreme Court pushed the issue of same-sex marriage back to the states – where it has long belonged – without taking sides on it as a moral issue. That was a wise legal choice. It may help avoid further government entanglement in the way individuals enter marriage for reasons that have long predated government and are still often rooted in religious motivations.
The high court did, however, come down strongly against Congress opposing same-sex marriage. It struck down the Defense of Marriage Act, or DOMA, while not even deciding a case involving California’s Proposition 8, which overturned a state court ruling.
In the DOMA decision, the majority’s five justices said the 1996 law was discriminatory against a particular class of persons, both in its intent and its effects in denying access to federal benefits. They cited constitutional requirements for equality before the law.
But the court left it to the states to continue in their traditional role of defining lawful marriage – even if Congress cannot – just as churches and other religious institutions have the freedom to decide the spiritual and moral contours of marriage.
States that prefer to sanction marriages that are only between a man and a women may now find it difficult to prevent state judges from using the court’s arguments about equality. But the ruling, written by Justice Anthony Kennedy, relies heavily on his long-held concerns about protecting personal liberty.
In a previous decision, Justice Kennedy wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” He said sex is only a part of “a personal bond that is more enduring.”
As many well-seasoned married couples know, an enduring marriage relies more on a blending of individual qualities than on sex. As the DOMA ruling stated, marriage comes with responsibilities as much as rights. The state’s role is to help spouses live up to the responsibilities they accept in making a life-long commitment.
The ruling also found that states, like individuals, have the sovereignty to decide on marriage based on their “considered perspective on the historical roots of the institution of marriage.”
By throwing same-sex marriage back to the states, the court may have helped refocus the debate over marriage beyond issues of sex. The liberty to marry still comes with a price to maintain marriage for its noblest purposes. States have laws on minimum age for marrying, whether cousins can marry, how many spouses one may have, and so on. They now know that the question of same-sex marriage won’t likely be answered by the Supreme Court.