The US Supreme Court's decision to hear arguments about the constitutionality of the federal Defense of Marriage Act (DOMA) and California's Proposition 8 guarantees that the debate over marriage will be at the forefront of American public life for the foreseeable future.
DOMA defines marriage as the legal union of one man and one woman for purposes of federal law (it says nothing about what states may or may not define as "marriage"). Prop 8 was a voter-initiated correction of the California Supreme Court's interpretation of that state's constitution as containing a "right" to same-sex "marriage."
Irrespective of whether the U.S. Supreme Court takes a narrow approach to these cases, or tries to find a "right" to same-sex "marriage" in the U.S. Constitution that would be binding on all the states, the marriage debate will continue. Indeed, if the Court preempts the political process, the marriage debate will likely intensify, just as the right-to-life argument intensified after Roe v. Wade eliminated the abortion laws of every state, 40 years ago this month.
All the more reason, then, to try and clarify some of the issues here.
Laws authorizing same-sex "marriage" have been successfully promoted as the equivalent of civil rights laws that ban racial discrimination. Indeed, that's a large part of the power of the "marriage equality" movement: it has battened onto the one available public moral reference point for Getting It Right in 21st-century American politics — the civil rights movement of the 1950s and early 1960s. For almost two centuries, equality before the law had been denied to Americans of African descent; that blatant injustice was challenged by a movement of moral persuasion and legal maneuver; the movement was ultimately vindicated by a change of hearts, minds and statutes. If then, on matters of race, why not now, on the question of who can "marry"? That's the argument; it has considerable emotive power.
But it's wrong.
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