It should also be noted that Proposition 8 has not been invalidated, as many in the media have erroneously reported. The case was dealt with on a narrow procedural basis; the appellate court decision was vacated, and it now goes back to the trial court to decide what will happen with the law. It’s the view of many Americans that Proposition 8 remains the law of the land in California unless a higher court invalidates it at some point in the future. That said, Wednesday’s procedural ruling is an illegitimate decision. California’s governor and attorney general, ignoring their oaths of office and duty to uphold the law, refused to defend Proposition 8 because they opposed the law, and the Supreme Court rewarded their dereliction of duty.
Senior fellow at the Brookings Institution; author of “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.”
I work in the District of Columbia and married Michael, my partner of (then) 14 years, when it became legal there nearly three years ago. We live in Virginia, which bans any recognition of same-sex marriage. Until Wednesday, every time I drove home from my D.C. office, I was magically unmarried. I liked to joke that I had a straight man’s ideal marriage: married at work, single at home. But the reality was not funny. More than 1,000 federal legal provisions hinge on marriage, and many of them are indispensable in gay couples’ struggles to build secure family lives for themselves and their children. Under DOMA, we could be forced to testify against our spouses in federal court. If married to foreigners, we often couldn’t get our spouses into the country, much less the hospital room. We couldn’t inherit tax-free or, in many places, get spousal health insurance. The Supreme Court’s decision striking down a key part of the Defense of Marriage Act means most of that will change.
I’ll leave the legal niceties of the court’s two gay-marriage rulings to others. As a policy matter — and as a political matter — what the court did was smart. It did not impose same-sex marriage on the country; it thus allows advocates of marriage equality to finish the public argument we’re winning and clinch the bigger prize of victory in the court of public opinion. It held to our country’s long and wise tradition of federal deference to states on matters of family law. It also, as Justice Antonin Scalia grumpily noted, laid groundwork in its reasoning for a presumption of equality in future decisions. If you’re going to treat gays differently than straights, the court told legislators and voters, you need to have a good reason — a better reason than exclusionists have managed to provide.
In effect, the court moved the ball down the field without taking it off the field. Given the country’s rapid evolution on same-sex marriage, that is about what the court should be doing.
Director of the Jesse M. Unruh Institute of Politics at the University of Southern California
More than a century ago, the political cartoonist Finley Peter Dunne observed that “th’ supreme court follows th’ iliction returns.” Dunne’s point was that the justices were far from oblivious to the political landscape from which they are supposed to remain isolated and that their decisions could not avoid relying on changes in public opinion.
But in an age when our political analyses and opinions are found more frequently on blogs and Twitter feeds than the comics pages, it’s clear that this generation’s Supreme Court at least understands that Americans’ cultural habits are formed and altered by what they see on their screens. Fifteen years of “Will and Grace,” “Glee,” “Modern Family,” and biopics portraying the lives of J. Edgar Hoover and Liberace have fundamentally altered the perception that growing numbers of voters hold toward gay men and women. The result is an electorate that is no longer alarmed by the prospect of same-sex marriage but is increasingly either exultant or indifferent.
Much is made of the tremendous support for same-sex marriage among younger voters, whose attitudes toward homosexuality were formed in a much different environment than their parents and grandparents. But polling in California — home of Proposition 8 — shows that older generations are shifting toward acceptance as well. Although pockets of resistance will remain for many years, the Supreme Court’s dual decisions on DOMA and Proposition 8 mark a Rubicon from which it is impossible to imagine a societal, political or judicial reversal.
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