Early this summer, Supreme Court Justice Anthony Kennedy had strong words for those of us who believe marriage should be an institution between one man and one woman. He changed the nature of the debate, and possibly, the future of the struggle.
Kennedy wrote the majority opinion striking down part of the federal Defense of Marriage Act (DOMA). That part of the law stated the federal government only recognizes traditional marriage. The original lawsuit against it was filed by a woman in New York who was legally married in Canada to another woman who had died. The survivor was unable to take advantage of an estate-tax deduction available under federal law to spouses only.
Kennedy had this to say: “By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. 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 … 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.”
Don’t miss what Kennedy is saying here: DOMA, passed in 1996 by broad majorities in the House and Senate and signed by President Clinton, had as its purpose to “injure” homosexuals and to oppose upon them a “stigma” all because they were at the time politically unpopular.
That is unfair, unkind and untrue. The purpose of DOMA was to define marriage in federal law and thereby to help give a child a better chance at having a relationship with both his father and his mother, because same-sex marriage undermines the value of that unique and precious union. Justice Antonin Scalia recognized the venom implicit in Kennedy’s remarks and he responded to it in his dissenting opinion:
“In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad.
“But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution.”
Those are sharp words for a Supreme Court opinion—“hate” and “monsters”—but I wonder if they will become prophetic words. For some time now, secularists who abhor sincere religious belief have used the “hate” word to describe the principles that derive from it, and one of them is marriage. That’s really what’s at stake here, Scalia wrote: the demonization of the views that religious people hold. Kennedy alluded to it in his written opinion and Scalia called him on it in his.
The question to be asked is whether religious people will be forced to knuckle under to the views of the state, or risk becoming the “monsters” Kennedy fears. If that happens, we hope he will be able to apply those same “equal protection principles” even to those “monsters” among us and not just to those on whom government smiles.
Tom Minnery is the senior vice president of government and public policy. Do you know someone who’s bravely done the right thing in your community? Send your stories to Citizeneditor@focusonthefamily.com.
Focus on the Family Citizen magazine sets the record straight on the issues that affect your family, your community and your church. You’ll read about local heroes and find practical steps to help you make a difference. If you want a nation that honors faith, family and freedom, Citizen is for you.