On Victoria Day weekend this year, I celebrated the rule of law that Queen Victoria bequeathed to Canada by getting married. My husband and I called it our “big fat gay wedding” – a homage to the Greek-Canadian film classic of similar title. Our many nieces walked up the aisle, handing out tulips. They were joined by a small “flower boy” – our lone nephew – and a judge of the Ontario Superior Court, who sealed the deal.
Wednesday, we learned that it isn’t just Canada’s Charter of Rights and Freedoms that protects us: Our love is also endorsed by the Constitution of the United States. In a 5-4 decision, the U.S. Supreme Court held that the Defense of Marriage Act (DOMA), a legislative ban on any flowing of federal marriage benefits to coupled gays, violates the Constitution’s Fifth Amendment in those states that permit gay weddings. (The Fifth Amendment says that “no person shall be … deprived of life, liberty, or property, without due process of law.”)
Significantly, the decision was not written by a liberal. The author was Justice Anthony Kennedy, a judicial conservative and Republican. Moreover, Justice Kennedy was appointed by president Ronald Reagan, whose legacy is a symbolic battleground for conservatives. For a minority of them, Mr. Reagan got it right in the 1980s when he ignored the AIDS plague that killed so many gay men.
But Justice Kennedy’s decision understands American conservatism in a different way. Implicitly, it suggests that Mr. Reagan held a more authentic position when he opposed a ban on gay teachers in California, in the name of equality. For Justice Kennedy, the Fifth Amendment values of “liberty” and “life” find reflection in gay rights, and mere distortion in the movement’s foes.
“The federal statute is invalid,” he wrote, referring to DOMA, “for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.”
The words effectively call homophobia un-American.
To show that it really means that, the Supreme Court also announced Wednesday that it would not rule in a case that sought a ban on gay weddings in California, where Mr. Reagan was once governor. In so doing, Justice Kennedy and company left in place a lower court ruling on the matter, in which gay marriage was described as entwined with the constitutional right to freedom.
Four Republicans of the court disagreed with Justice Kennedy’s brand of conservatism. They held that the federal ban on gay marriage rights is compatible with the Fifth Amendment. In his dissent, Justice Antonin Scalia makes an important point: that gay liberationists have a bad habit of describing all of their opponents as bigots.
“In the majority’s telling, this story is black and white: Hate your neighbor or come along with us,” he said. “The truth is more complicated.”
He is right. Particularly among religious critics of gay rights, not all dissenters are hateful. Many, like Mr. Reagan when he ignored AIDS, are loving people who are simply ignorant. Given that Justice Scalia refrained from bigoted language in his decision, it appears that he, too, may fall into this category.
Gay marriage rights are not perfectly secure in the United States. Many states have no gay marriage laws at all. Wednesday’s ruling does nothing to force those states to change. This will provide some relief to the dissenting constituency.
Meanwhile, my husband and I have good memories of our honeymoon last month in Niagara Falls. I only regret that we had to stay on the Canadian side of the water that Victoria Day, so as not to ruin the mood.
Aidan Johnson is a lawyer.Report Typo/Error
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