Opinion

The Great Debate

A victory for gays and for families

I didn’t expect to cry on my wedding day. But there I was last September, in my Cape Cod backyard, trussed up in suit and tie, waiting for my soon-to-be husband at our makeshift altar, and the tears came. I wish I could say they were two camera-ready teardrops, wending their way down my left cheek. But no. In reality, I got a monsoon — I was a sobbing, near-hyperventilating mess. The importance of what we were doing had just hit me: We were pledging, in public symbol and sacred promise, to build and sustain a life together.

When I began to read what Justice Anthony Kennedy wrote for the court’s majority, I realized that he agreed. In eviscerating DOMA, he also wrote a stirring defense of the very institution that many conservatives believe is threatened by gay marriage: the American family.

The announcement of the Supreme Court’s decision comes three days before Kennedy’s 50th wedding anniversary (he married fellow Sacramento, California, native Mary Davis on June 29, 1963), and what’s striking in his writing is the high regard that Kennedy has for what couples, gay and straight, assemble. He writes of same-sex couples’ “pride in themselves and their union.” He repeatedly deploys the word “dignity.” He argues that DOMA “places same-sex couples in an unstable position of being in a second-tier marriage.” And more than that, he writes, “the differentiation demeans the couple, whose moral and sexual choices the Constitution protects.” (His choice of the word “demeans” echoes his diction in Lawrence v. Texas, the 2003 case in which Kennedy, again writing for the majority, struck down a Texas sodomy law and argued that this kind of invasive legislation “demeans” gay people.)

Dignity and stability were already clearly on Kennedy’s mind during the two days of oral arguments about DOMA and California’s gay marriage ban in March. At one point, lawyer Charles J. Cooper, arguing on behalf of California’s gay marriage ban, warned of “adverse consequences” of “fundamentally” redefining “this age-old bedrock social institution” of marriage. Justice Antonin Scalia backed Cooper up, with friendly speculation that children raised by same-sex couples might suffer unspecified “deleterious effect.” After both conceded there was no evidence of such effect, Kennedy pointed out one real-world consequence of the ban: “immediate legal injury” to the 40,000 children being reared by same-sex couples in California. Those children, he said, “want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

He certainly thought so, because he returns to the children in his decision. If we are, to borrow Scalia’s wording, talking about the deleterious effects on children reared by same-sex couples, Kennedy outlines the most obvious ones that result from DOMA: The law, he writes, “humiliates the tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Big wins for the freedom to marry. Now let’s finish the job.

Reggie Stanley (R) and Rocky Galloway embrace as they are married in Washington.

Nearly two years after we were pronounced married by New York state in front of our family and friends, my husband and I are finally married in the eyes of the federal government.

Okay, it took an order from the Supreme Court. But Cheng and I are celebrating anyway.

Like so many other same-sex couples wed under the shadow of the so-called Defense of Marriage Act, we had been treated as second-class citizens — forced to pay extra to file our taxes and get spousal health coverage. We were denied access to federal programs such as Social Security or immigration green cards — among the many federal protections automatically afforded other married couples who are not gay.

What public unions and gay marriage have in common

The political fireworks in Wisconsin, culminating in the recent unsuccessful recall election of the Republican governor, Scott Walker, have a lot of people saying good riddance to public-sector unions. Last year, Walker and the Wisconsin state legislature enacted Wisconsin Act 10, stripping most – though crucially not all – of the state’s public unions of their most fundamental powers, including collective bargaining and the ability to deduct dues from workers’ paychecks. Many observers – and not only Republicans – have signaled their approval, arguing that public unions – representing teachers, bus drivers, healthcare workers – shouldn’t exist in the first place.

“Public sector unions have reached their high water mark,” a Forbes columnist cheered last week. “Let the cleanup begin as the red ink recedes.”

It turns out, however, that killing off public-sector unions is a lot harder than most people imagine. And, curiously, the reason is related to recent court decisions about gay marriage. Late last month, the U.S. Court of Appeals for the First Circuit ruled that the 1996 Defense of Marriage Act is unconstitutional and cannot be enforced. The principle is equal protection under the law: If you allow same-sex couples to marry – as eight states and the District of Columbia now do – you can’t economically discriminate against them (by denying the ability to file joint tax returns or withholding Social Security benefits) simply because they are not heterosexual.

The gay-rights cause Obama can actually do something about

On Wednesday, President Obama declared his evolution complete. In an interview with ABC News he said: “At a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.”

Gay-rights groups rejoiced; conservative groups scolded. But what the president thinks about gay marriage is, ultimately, symbolic. There is a different issue on which Obama could achieve real, tangible results for gays and lesbians, and gain electoral advantage over Mitt Romney: employment discrimination.

Obama has already done everything he can on gay marriage. His administration has declared the federal law banning gay marriage, the Defense of Marriage Act (DOMA), to be discriminatory and declined to defend it in court. He has extended spousal benefits to the domestic partners of federal employees. Marriage laws, on the other hand, are written at the state level. Even a constitutional amendment to define marriage as between a man and a woman, which Romney supports and Obama already opposed, is not actually signed by the president.

  •