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.”