In its disdain, court invites discrimination

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The only matter settled by the U.S. Supreme Court's decisions on gay marriage last week is that our nation faces many more years of litigation and legislation. And that was already a certainty before the decision was handed down.

Had the court established a sweeping constitutional right to same-sex marriage -- a decree that, like Roe v. Wade, would have overturned the varying laws of many states -- the political climate ahead would be far more bitter and divided.

For those of us still hoping for a win-win, this bit of judicial restraint constitutes some good news.

The bad news is that while the majority decisions were restrained, their rhetoric was not. The prevailing justices' lack of historical knowledge and philosophical depth underscores the significant drawback to our society's health in appointing to the bench mere specialists in the law. These are very smart people with alarmingly narrow vision.

And in their narrow vision, they have set the stage for a new persecuted minority: religious traditionalists.

It didn't have to be this way. It still doesn't.

Justice Anthony Kennedy's language in the decision overturning part of the Defense of Marriage Act is, as others have already pointed out, contemptuous of tradition and those who value it. Being able to see into other people's hearts and minds, he asserts that DOMA was motivated by a "bare congressional desire to harm a politically unpopular group."

If Justice Kennedy can't imagine any other reason why citizens would want the traditional configuration of marriage to be protected by law and esteemed in society, then his religious, social and emotional life has been woefully barren.

That said, DOMA was written in 1996. Much has changed since then. Many people who had never been exposed to gays and gay relationships have had their experience broadened and their viewpoints changed by, if nothing else, trends in pop culture, TV and film.

Joe Biden was right when he pointed out how pivotal "Will & Grace" was -- to say nothing of "Glee." Gays are no longer "a politically unpopular group." From Ellen DeGeneres to Adam Lambert to Neil Patrick Harris, they're the new cool..

Gays are so positively portrayed, in fact, that Americans, especially the young, assume they make up to 25 to 30 percent of the population. But according to a nationwide Gallup poll of 200,000 people conducted last year, it's actually 3.5 percent.

And the soon-to-be "politically unpopular group" -- if Justice Kennedy's contempt spreads -- will be the millions of evangelical Christians and conservative Catholics whose churches and/or personal religious beliefs preclude the recognition of same-sex marriage.

In areas where same-sex marriage is already the law, the Catholic Church has ended its decade long ministries in adoption and services to the homeless because it cannot comply with the government's insistence that it recognize gay marriage.

In addition to government thus forcing religious institutions from the public square, individuals whose consciences do not allow them to participate in same-sex weddings -- as caterers or photographers or musicians -- have been prosecuted and fined in some jurisdictions.

America's 247 million Christians (80 percent of the population) can expect to see more of the same. Some will not mind; several Christian denominations recognize same-sex relationships and ordain openly gay clergy.

Numbers and percentages don't matter in principle, of course, but they do in practice.

If the Supreme Court found that Californians didn't have "standing" to challenge the overturning of Proposition 8, the court's thoughtless leadership will create a huge new class of people -- religious traditionalists -- who will have standing once they are discriminated against.

Quite a few of us who identify as heterosexual, Evangelical and traditionalist nonetheless wish to extend to our fellow citizens all the relationship rights we enjoy in our straight marriages. We simply wish to do so in a way that preserves our constitutional right to disagree about the theology of marriage without being persecuted by the state.

A way to achieve this is for all of us to recognize the historical truth that long before marriage was ever regulated and codified by any government, it belonged to the sacred realm. Establishing a distinction between "civil unions" licensed by the state -- for all of us, regardless of sexual orientation ---- and "marriages" celebrated in the spiritual tradition of one's choice sets the constitutional foundation for complete equality in relationships and in religion.

The court's DOMA decision leaves in place Section 2, which allows each state to find its own way on this important matter. Since the Supreme Court can't imagine a course of liberty and justice for all, why doesn't the Keystone State once again lead the way?


Ruth Ann Dailey:


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