Justice Antonin Scalia dissented, maintaining that “moral disapproval” was sufficient reason to sustain the challenged law. But in the decade since Bowers v. Hardwick, the majority had come around to Blackmun’s view that traditional scruples cannot justify discrimination. It was this principle that Kennedy applied again seven years later, when he wrote the opinion in Lawrence v. Texas that overturned the Bowers precedent. Gays and lesbians enjoy the same right to privacy in their intimate lives as heterosexuals, Kennedy declared, while in a separate concurring opinion, Justice Sandra Day O’Connor added plainly, “Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause.”
“This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples,” Scalia wrote in reply, because state laws designed to “preserve the traditional institution of marriage” were in fact rooted in “moral disapproval of same-sex couples.” And by then, the ground was shaky indeed.
The court had simply ratified what Americans were discovering daily: that gay men and lesbians were not aliens from society, somehow set apart. Their number included Olympic gold medalists like Greg Louganis, billionaires like David Geffen, entertainers like Ellen DeGeneres. A gay rugby player, Mark Bingham, was among the bold passengers who thwarted the hijackers of Flight 93 on 9/11. The Archbishop of Milwaukee, Rembert Weakland, was gay. The person next door, in the next office cubicle, the person seated next to you at Thanksgiving dinner or Passover seder or in the pew in church could be gay. Thus did the other begin to shade into the ordinary.
Though polls have continued to show resistance to same-sex marriage among Americans over 65, the ones born after 1980 are stoutly in favor. They are the cultural vanguard, more libertarian than the generation before, who made mainstream hits of Queer Eye for the Straight Guy and Glee. And every day there are more of them and fewer of the old folks, a fact of nature even older than marriage.
Same-sex marriage soon became a reality in America — first by court and legislative action in such states as Massachusetts, New York and Iowa, and more recently by popular vote in such states as Washington and Maine. Tens of thousands of couples have been lawfully joined, and the sky has yet to fall. Nor have churches been forced to recognize civil marriages of which they disapprove.
For Wolfson, who founded the advocacy group Freedom to Marry in 2003, these two factors, “lived experience and generational change,” have moved same-sex marriage from the lunatic fringe toward a surging consensus. Though traditionalists called a March for Marriage in Washington to coincide with the Supreme Court hearings, Michael May of Cleveland was badly outnumbered as he silently raised his placard: every child deserves a mom & dad. He said he was hopeful that the movement could be stopped. But then he added, “I don’t know.”
Before the Justices
The cases now before the Supreme Court may tie the threads up neatly, or they may be another step on a longer path. In Hollingsworth v. Perry, four California voters are seeking to reverse a lower-court ruling that threw out a ban on same-sex marriage. U.S. v. Windsor, meanwhile, challenges the use of DOMA to deny federal benefits to legally married same-sex couples. Edith Schlain Windsor is an elderly New York lesbian who married her longtime partner in Canada in 2007. After her partner’s death in 2009, Windsor sued the federal government over having to pay $363,000 in estate taxes that an opposite-sex spouse would not be required to pay.
In both cases, Kennedy, the author of Romer and Lawrence, sits at the fulcrum between liberal and conservative blocs. And a decisive outcome is by no means certain. Perhaps the only Justice who fully tipped his hand was Scalia, still plainly in dissent from earlier gay-rights decisions. “When,” he demanded of former solicitor general Theodore Olson, “did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?”
Olson, the conservative lawyer who argued for George W. Bush in 2000, is yet another of the Americans whose opposition to same-sex marriage has turned to solid support. But he had trouble satisfying Scalia’s demand for the particular moment.
“When?” Scalia repeated. “When did that happen?”
At last, Olson had to give the only answer possible — the true answer in a country where people are free to change their minds. “There’s no specific date in time,” he said of the many-threaded story. “This is an evolutionary cycle.”