We’re Glad That Marriage Equality Makes Alito and Scalia Mad

Today’s Supreme Court marriage decisions are big news for all U.S. citizens who care about equality. Not only do the rulings affirm the democratic principle of equal rights for all, they also signal a victory for the idea of equality within marriage—whether you’re gay or straight. The battle lines in these cases have to do with competing models of marriage, as Justice Samuel Alito made clear in his dissent against the overturning of the federal Defense of Marriage Act (DOMA) [PDF]. He labeled these two marriage models as “traditional” (or “conjugal”) versus “consent-based.”

Which one do you prefer? Check out the definitions and decide:

Traditional: “Marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing” [aka the “responsible procreation” model.]

Consent-based: “Marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction between two persons.”

Need a minute to think about this? I doubt it.

In terms of civil marriage, the consent-based model has already won, hands-down, something we can attribute in great part to feminism. Despite what you’ll hear from gay rights opponents, marriage has changed quite a bit since the days of the founding fathers. For one thing, women who entered into marriage contracts back then lost their legal identity and became, essentially, the property of their husbands. It wasn’t until well into the 20th century that women received full equality within marriage, and no amount of scripture quoting would or should turn back the clock on those gains.

The majority view in United States v. Windsor [PDF] is a natural outgrowth of both LGBT and feminist activism. Writing for the majority, swing vote Justice Anthony Kennedy, like Justice Alito, also identified a conflict between two kinds of marriage as central to the DOMA debate—but he took a legal rather than ideological view. On the one hand are state-sanctioned marriages legally recognized by the federal government; on the other are those that the federal government refuses to acknowledge—i.e., the marriages of same-sex couples. He takes an emphatic stand against DOMA as having been enacted with discriminatory intent:

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. …

The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law….

DOMA writes inequality into the entire United States Code.

The effect of DOMA, the ruling says, is to place legally married same-sex couples in a “second-tier marriage.” This status “demeans the couple” and “it humiliates tens of thousands of children now being raised by same-sex couples.”

Kennedy had already signaled his concern for same-sex couples with children during the March 26 oral arguments [PDF] on Proposition 8’s constitutionality :

There is an immediate legal injury  [caused by the marriage ban], … and that’s the voice of these children. There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case.

Even though the ruling on Proposition 8 ended up focusing on the legal technicality of standing and not on the merits of the marriage ban, Kennedy and the majority of the Court made a point of representing those children’s voices in the decision overturning DOMA:

[DOMA] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

The decision concludes,

DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

One test of how happy we should be about today’s DOMA ruling is to gauge the anger evinced in Justice Antonin Scalia’s dissent. His statement is riddled with emotional language and colorful metaphors. He’s mad because he thinks the State should be able to express moral disapproval of gay men and lesbians and because he doesn’t want to be called a hater or a bigot when he does so. And he’s really mad because he—rightly—views the DOMA decision as the death knell for marriage bans around the country.

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

He’s right about that. Which brings us to the Prop 8 decision. It would have been even more uplifting for proponents of marriage equality had the court ruled on the merits of Prop 8 and found it to be unconstitutional. There may be more legal wrangling before same-sex couples can head to the courthouse for their marriage licenses in the state of California, but we’re talking weeks now, not years or even months.

Once the wedding bells start ringing for same-sex couples in the state with the largest population in the union, support for marriage equality will only grow. That’s because our victory signs are marriage photos. Each time a new state—or entire country—has legalized same-sex marriage, the Internet lights up with images of happy couples and children, celebrating what even the most hostile viewer must recognize to be love.

That’s why President Barack Obama applauded today’s rulings:

The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: When all Americans are treated as equal, no matter who they are or whom they love, we are all more free.

Here’s hoping that the other shoe drops soon and full marriage equality becomes the law of the land!

Photo courtesy of majunznk via Creative Commons 2.0.


Audrey Bilger is the current president of Reed College, and previously served as vice president and dean of Pomona College. She is also a former professor of literature at Claremont McKenna College and faculty director of the Center for Writing and Public Discourse. She also teaches gender studies, and occasionally yoga. Her latest book, which she co-edited with Michele Kort, is Here Come the Brides! Reflections on Lesbian Love and Marriage (Seal Press, 2012). She is also the author of Laughing Feminism, editor of an edition of Jane Collier’s 1753 satire "An Essay on the Art of Ingeniously Tormenting," and a frequent contributor to Bitch magazine. Her work has been featured in The Paris Review, Rockrgrl, the Huffington Post and the Women's Media Center.