Same-Sex Marriage and the Supreme Court


TIM O’BRIEN, correspondent: Four years ago, voters in California approved Proposition 8, an amendment to the state’s constitution banning same-sex marriage in the state, only to have it overturned two years later by a federal judge who said the amendment denied gays and lesbians the equal protection of the law guaranteed by the U.S. Constitution.

THEODORE OLSON (Attorney for plaintiffs in Prop 8 case): “Today, we are more American because of this decision…”

O’BRIEN: …a huge decision that would require all states to recognize gay marriage should the U.S. Supreme Court agree.

The second case involves the federal Defense of Marriage Act—DOMA, for short. The law denies same-sex couples who marry the same federal benefits routinely accorded heterosexual marriages, including many tax benefits like the right to file a joint return.

post01-same-sex-marriageDOMA is being challenged by Edie Windsor, whose relationship with Thea Spayer spanned more than 40 years. They had met in the early sixties and were at one another’s side for decades. They registered in New York City as domestic partners as soon as they could in 1993. But they wanted much more.

Edie Windsor: “We want to do the vows and we want to exchange rings.”

O’BRIEN: Spayer had been stricken with multiple sclerosis, and her health was failing. But that did not keep her and Edie from hopping a plane to Toronto, Canada, where in 2007 they were wed.

Thea Spayer: “I Thea Spayer, choose you…until death do us part.”

O’BRIEN: Two years later Thea passed away, leaving the bulk of her estate to Edie, now 83, which resulted in an estate tax bill of $363,000. Even though New York recognized their marriage, Edie did not qualify for the marital deduction allowed heterosexual marriages because of the Defense of Marriage Act.

A federal appeals court in New York found that also violated the guarantee to equal protection, but went much further. After noting a long history of discrimination against gays and lesbians, the court concluded any law that makes distinctions based on sexual orientation must be subjected to “heightened scrutiny,” and the government must present “exceedingly persuasive” proof that the distinctions further “an important government interest.” Should the U.S. Supreme Court agree, it would be much more difficult for Congress or any city or state to discriminate against gays and lesbians on anything, not just marriage.

The Justice Department ordinarily defends laws passed by Congress, even those it doesn’t like. But after the New York court’s decision, President Obama said his Justice Department would no longer defend DOMA in court:

President Barack Obama:“DOMA, the Defense of Marriage Act, is unconstitutional, and so we’ve said we cannot defend the federal government poking its nose into what states are doing and putting the thumb on the scale against same-sex couples.”

O’BRIEN: Those who had fought for passage of the Defense of Marriage Act were understandably dismayed.

Family Research Council President Tony PerkinsTony Perkins (President, Family Research Council): “This is about what our children are going to be taught in elementary school. It is about stepping in between a parent and their child and imposing a new morality, or absence thereof, upon our children.”

O’BRIEN: Republican leaders in the House said they would defend the law themselves:

John Boehner (Speaker of the House): “I raised my hand to uphold and defend the Constitution of the United States and the laws of our country, and if the Justice Department was not going to defend this act passed by Congress, well, then we will.”

O’BRIEN: Whether the House has the legal right to defend the law in the Supreme Court is unclear. A similar question arises with Prop 8 in California, where the state has also decided not to defend that law, giving the justices an easy out for a narrow decision or to sidestep the issue altogether if they choose.

Historically, the court moves very slowly on social issues—following the trends, rarely leading them. The court took the lead in 1954, desegregating the nation’s schools, igniting the civil rights movement. Resistance was massive, however. It wasn’t until 1967 that the court got around to addressing interracial marriage in the case of Richard and Mildred Loving, who were convicted of violating Virginia’s law against interracial marriage, a felony punishable by prison.

Richard and Mildred LovingRichard Loving (Plaintiff in Loving v. Virginia): “They sentenced us to one year in the state penitentiary. Then they suspended for 25 years and said that we had to leave the state.”

The Supreme Court ruled 9-0 to throw out their convictions, Chief Justice Earl Warren writing, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.”

Virginia’s law “had no legitimate overriding purpose independent of invidious racial discrimination.” The decision went against public opinion. Interracial marriage was illegal in 16 states at the time, and a Gallup poll showed 73 percent of those surveyed disapproved of it. Race relations have come a long way since 1967, and proponents of same-sex marriage see similar progress for gays and lesbians.

LEE SWISLOW (Executive Director, Gay & Lesbian Advocates & Defenders): I think this is an area in which we’ve seen tremendous movement over the last 15 or 20 years, and people are on a journey. I mean, as a lesbian I had to go through my own journey when the community first started talking about marriage, and I was, like, are you kidding? Marriage? It’s not for us. That’s never been for us. And yet, as I thought about it I realized I do want to get married. Once I let myself believe it was possible, I want to marry the woman I love.

Lee Swislow, Executive Director, Gay & Lesbian Advocates & DefendersO’BRIEN: The court will not be writing on a blank slate. Twenty years ago, the justices threw out a constitutional amendment in Colorado that would have prevented cities from protecting gays from discrimination, and in 2003, the court rejected a Texas law that made gay sex a crime. Justice Anthony Kennedy, whose vote could be critical on the same-sex marriage question, wrote both decisions and in striking down the Texas law said this about gays and the gay lifestyle:

Justice Anthony Kennedy audio: “The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government. It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

O’BRIEN: Justice Kennedy insisted the court’s opinion did not directly apply to same-sex marriage, but dissenting Justice Antonin Scalia saw it differently:

Justice Antonin Scalia audio: “At the end of its opinion, the court says that the present case ‘does not involve whether the government must give formal recognition to any relationship that homosexual persons may seek to enter.’ Do not believe it. Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions.”

O’BRIEN: A federal appeals court in Boston agreed with Scalia’s interpretation and last May became the first federal appeals court to throw out DOMA, citing Kennedy’s decision in the Texas case as authority. The rules governing marriage, like the rules governing divorce, have historically been left to the states, and they differ from state to state, like how old do you have to be to get married, and what do you do to get out of a marriage? The issue of same-sex marriage is widely expected to divide the court along liberal-conservative lines, but not necessarily. Lee Swislow of Gay & Lesbian Advocates & Defenders says there is a “state’s rights” component in the case that could win over some conservative justices.

SWISLOW: When a state says you’re married, does the federal government, as it has always done in the past, agree with that state definition? This is the first time that the federal government has ever reached in and said, “We don’t care what you say, state. We’re going to have our own definition of marriage.” And we don’t think there’s any legitimate reason for the federal government to take this unprecedented action.

O’BRIEN: Throwing out DOMA would not require all states to recognize gay marriage, but striking Prop 8 possibly could. A number of mainstream religious groups do not support gay marriage.

JIM GARLOW (Founder, Pastors’ Rapid Response Team): Authentic, biblical, historic, orthodox Christianity has always affirmed marriage being one man and one woman.

O’BRIEN: And the court in New York addressed the religious concerns, distinguishing civil marriage from holy matrimony. Judge Dennis Jacob wrote “the law is not concerned with holy matrimony. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.” That the country has become more tolerant of homosexuality would seem to be unmistakable, and it may also be irreversible.

For Religion & Ethics NewsWeekly, I’m Tim O’Brien in Washington.

BOB ABERNETHY, host: For more on religious groups and same-sex marriage, I am joined by Kim Lawton, managing editor of this program. Kim, this is a tremendously powerful and divisive issue for religious groups, isn’t it?

KIM LAWTON: It is and these cases are going to be really, really important for these religious groups. They’re going to be very involved on both sides of the issue. Some of the strongest opposition to gay marriage at the legislative level, at the court level, has come from religious groups, especially evangelical groups, Roman Catholics; the Roman Catholic bishops have been speaking out in favor of traditional marriage. So I expect there’s going to be a robust amount of activity not only in terms of these religious groups writing friend-of-the-court briefs and telling the High Court what they think about the issue, but also at the grass roots. I’ve already been getting emails about prayer campaigns that are being organized. For example, the bishops after Christmas are doing a prayer campaign to support what they call traditional marriage, life, and liberty.

ABERNETHY: And how do they divide up? Catholics and evangelicals are one, but it’s not all one or the other, is it?

LAWTON: Exactly. There are growing movements within the religious community in support of gay marriage. There are religious groups who look at this as a matter of equality and justice. Jewish groups have been—Reform and Conservative Jews have been very supportive of gay marriage. Orthodox—not in the Jewish community; in the Christian community a little more complicated. Certainly while the Roman Catholic Church at the hierarchy is opposed, you have grass-roots groups, like there’s a group called Equally Blessed that says you can be a faithful Catholic and still support this on an equality issue. And then a lot of the mainline denominations really torn over the issue. United Church of Christ and Unitarians support gay marriage, but a lot of the other ones still define marriage as between a man and a woman.

ABERNETHY: And I think about conflict within one congregation, for instance, not only within the members of the congregation, but the bind the pastor can be in if the state says one thing and the Bible says another.

LAWTON: Well, exactly. This has been an issue in some cases where in states that have legalized gay marriage and the pastors are in denominations that don’t recognize it, and so congregants who are gay come to them and say we want to be married in a church, but the pastor says, well, our denomination doesn’t allow that.

ABERNETHY: Kim Lawton, many thanks.

  • hyhybt

    On the last few sentences… although I’d love for it to happen, I wouldn’t even *ask* my pastor to do my wedding (were it legal here, did I have someone to marry, and even if I knew absolutely that he was personally supportive) precisely because I know it’s against the official denominational stance and could get him in trouble.

    But nothing sane even *hints* he wouldn’t have the right to refuse if he were asked.

  • LeslieDF

    No where in either case before the Supreme Court on DOMA, or Prop 8, is there a LEGAL argument or fact about “religion” or “religious rites.”

    This is no issue at stake in either case before the Supreme Court about Federal and State and then “religious marriage.” Nor is “religious marriage” in the Constitution, or a requirement in any state law.

    I don’t expect to marry in a church, or be invited to. They should not expect to be invited, or show up uninvited for mine, at city hall.

  • RsH

    In Canada, where same sex marriage is legal throughout the nation, no one can be forced to perform a same sex marriage. The individual authorized to conduct the marriage determines whether or not he or she is willing to do so. The individuals wanting to marry must find someone legally entitled to perform the marriage according to the laws of the province and then arrange the place, time, guests, and so on. It can be in a church, temple, banquet hall, restaurant, or outdoors, as long as all are agreed and the person doing the ceremony is legally able to do so and wants to do so, for whatever fee he or she charges. So I agree that a minister cannot be forced to go against his or her wishes, and may well decline to marry a same sex couple, but that same couple will usually be able to find someone else who is legally able to and willing to perform the ceremony. Check out Unitarian Universalism if you want a church wedding with a recognized minister…

  • Joe

    All the pastor would say is,”you got that passed through your constitutional right not through my beliefs. I also have Freedom of religion which is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance and Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

    Every pastor has the right to refuse to marry any same sex marriage based on his freedom of religion.

  • Eric Biggs

    The passage in Leviticus which was at the root of the supposed Biblical condemnation of male homosexuality was mistranslated from the original Hebrew, which talked about temple prostitution rather than gayness. This mistake was carried forward in the Septuagint and the King James Bible, as well as most of what followed. The real Bible actually had little or nothing to say about gays, and Jesus did not denounce them a bit. Christians who rely on the Bible to discriminate against gays are misled and incorrect.

  • LeslieDF

    We went to city hall in San Francisco in 2008 and married on our 33rd anniversary. That’s a very long time to be “engaged” to each other and with society. But we continue to stay “engaged” with society.

    We went to city hall, not to a church, or synagogue, or mosque, because we respect the beliefs of religious people. We did not ask them to marry us, or to be married to either of us, or to even consider us married.

    We went to city hall. We got a civil marriage license.

    The judge in New York was right: “the law is not concerned with holy matrimony. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it.”

    What does all of this say about scripture, or a church, when religious groups come to rely on city hall to influence or enforce religious beliefs about marriage?

  • john brown

    The issue here is: WHO DO YOU THINK ULTIMATELY MAKES THE RULES. Marriage is between a man and a woman and was initiated by God as far back as the book of Genesis. The sanctity of marriage is a pillar of our society. God has clearly indicated that he HATES immorality while society endorses it. God loves the sinner but hates the sin. In Romans it’s clearly stated what will happen (continue to happen) to our great nation. If the Supreme Court chooses to affirm same sex marriage and suppress the truth of God, He will abandon our nation.

  • Not John Brown

    Dear Mr. John Brown, with oodles of respect… If the God you speak of were going to abandon our nation, I suspect he/she would have already dispensed with us t long ago. If not, then surely he/she will abandon us over one of our own Americans opening fire on so many 6-year olds in CT. Perhaps you are projecting here a bit given your telling choice to capitalize the word “HATES” so prominently here. Unrelated, how on earth did you wind up here commenting on the PBS website anyway? Dare I infer that you are a fan of Big Bird, Bert/Ernie, and Downton Abbey?

  • JDE

    @John Brown: ” If the Supreme Court chooses to affirm same sex marriage and suppress the truth of God, He will abandon our nation.”

    Western Europe has been suppressing “the truth of God” for some time, and with all their problems, they’re still doing better than we are.

  • Greggor

    This show is advocating and encouraging moral and cultural change(decline) by showcasing alternative choices and lifestyles and presenting them as normal and of equal value to traditional and more widely accepted lifestyles. Fortunately these new attitudes are still rejected and ridiculed by most of the world’s population. I liked the show much better when they focused most of their attention on the organized reilgions which are still widely respected and admired by millions of people around the world. This seems like it is no longer a show about religions, but rather a show about indifferance and hostility towards religion in current American society and popular culture.

  • Eric iggs

    mber 15, 2012 at 5:37 am

    Christians who object to gay marriage on the basis of Biblical passages are often well-meaning, but they are misled and incorrect. The key passages in Leviticus that form the root for most of the rest of the Bible’s sparse anti-gay language were a mistranslation from the original Hebrew, which talked about the pernicious temple prostitution and other degenerate practices prevalent in the time of Moses. Moses was against these, not gays. The error carried forth to the Septuagint, about the time of the Apostles, and Paul, who studied the Old Testament, would have picked this up. A great deal of the New Testament was Paul’s work. Jesus, however, did not condemn homosexuality, and said that all those who loved him would enter the kingdom of heaven. “All” means “all.” It is a mistake to redefine the inclusive language of the New Testament by using the more restrictive, tribalist language of the Old.

    The King James Bible also carries forward this error in translation, as have most bibles printed since 1600. This is one of the clearest examples of my fellow if somewhat closed-minded followers of Christ assuming that they know from isolated words and images what goes on in the mind of Christ, the Holy Ghost, and God, when by definition the mind of God is greater and more unknowable than mortals can fathom. We can find God in our hearts and minds, but only through feelings like compassion and forgiveness, not through rejecting love in favor of an evanescent, self-built, spurious truth.

  • Max

    In my opinion every little boy deserves to have a mother and a father; we should do all in our power to try to make this possible. I think as adults we often focus to much on ourselves. The judgement that the supreme court and our country needs to make is if a little boy should have a mother or if two fathers is an equivalent replacement.

  • JDE

    >Family Research Council President Tony PerkinsTony Perkins (President, Family Research Council): “This is >about what our children are going to be taught in elementary school. It is about stepping in between a parent >and their child and imposing a new morality, or absence thereof, upon our children.”

    As Perkins and his coreligionists regard evolutionary theory as evil and as an attempt to circumvent God’s sovereignty, they must also view its teaching as “stepping in between a parent and their child and imposing a new morality, or absence thereof, upon our children”.

    Perkins is here as much as admitting that he and his coreligionists are lying when they say they want creationism to be taught alongside evolution in public schools. Their goal is to eradicate the teaching of evolution as well as any other inconvenient fact that conflicts with their extremist religious ideology, and ultimately to impose conservative evangelical theology upon every child in America. This is the Dominionist agenda.