- Apr 28, 2011
- Reaction score
- In a Republic, actually
[The assumption is] that there is something better about a heterosexual relationship than a same-sex relationship and that the law can make that judgment. Put that way, it is clear that the opposition to marriage equality is ultimately about disapproval of homosexuality. But as the Supreme Court held in Romer v. Evans (1996), that is not a legitimate basis to justify discrimination
Thomas Berg makes a different argument for denying marriage equality: religious liberty. What about people or small businesses who for religious reasons dont want to rent to or serve same-sex couples? The question for society will be whether to allow religious views of this sort to justify discrimination. There are those who have religious beliefs about race and against interracial marriage. Those religious beliefs are not a valid exception to anti-discrimination laws; a landlord cannot refuse to rent to an interracial couple, even if the basis for the discrimination is the landlords religious beliefs. More generally, the Supreme Court in Employment Division v. Smith (1990) has held that religious beliefs are not an excuse from general laws.
Berg is right that allowing marriage equality will require consideration of how to deal with those who for religious reasons do not want to serve same-sex couples. But that is not a reason to deny marriage equality; it just is an issue that will need to be faced as marriage equality becomes common across the country.
It is the role of the judiciary to interpret the Constitution and especially to enforce its protections of liberty and equality. Laws that prohibit same-sex marriage deny gays and lesbians of the right to marry and discriminate against them solely based on their sexual orientation. It is the judicial role to strike such laws down, just as the Supreme Court did in Loving v. Virginia (1967), in invalidating state laws that prohibited interracial marriage. I do not see how the judicial role is any different relative to laws denying marriage equality to gays and lesbians.
I continue to believe that the Court will rule, five-to-four, in an opinion authored by Justice Anthony Kennedy, that laws prohibiting marriage equality violate the United States Constitution. Kennedy wrote the Courts opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003), and I think that he will see his longest-lasting legacy from over a quarter of a century on the Court being in the area of eliminating discrimination against gays and lesbians. I believe that his opinion will emphasize, as he did in Romer and Lawrence, the absence of any legitimate interest for prohibiting marriage by same-sex couples. As in Lawrence, and other opinions, he will point to the trend across the world.
Ultimately, the question for Justice Kennedy, the Court, and society is whether gays and lesbians are entitled to equal dignity and equal treatment under the law. There is only one possible answer to that question.
Full text at the link:
Reflections on a dialogue: Getting to marriage equality : SCOTUSblog