Today and Wednesday the U.S. Supreme Court hears two cases concerning gay marriage that could prove to be a major turning point in a debate that pits defenders of “traditional marriage” against civil rights proponents.
The challenge to California's Proposition 8 (Hollingsworth v. Perry): Prop 8 was a ballot measure approved by California voters in 2008 that amended the state's constitution to ban same-sex marriage. The case could provide an opportunity for the court to address the core question of whether the U.S. Constitution guarantees same-sex couples the right to marry because it involves a decision by California to prohibit gays and lesbians from doing so. But the court could strike down California's ban on same-sex marriage without ruling on the broader constitutional question.The challenge to the federal Defense of Marriage Act (U.S. v. Windsor): DOMA is the 1996 law that bars the federal government from recognizing same-sex marriage. The Windsor case does not directly address the question of whether the U.S. Constitution protects the right of same-sex couples to wed. The case involves a different constitutional question: Does the federal government's treatment of gays and lesbians under DOMA discriminate against them in such a way as to violate their constitutional rights?The Supreme Court's decision to take these cases shifts the judicial focus from state to federal courts. It also raises the stakes since federal cases involving constitutional principles could apply nationwide.Source: The Pew Forum on Religion & Public Life
The big question before the court is: What is marriage? Is it only a legal union between a man and a woman, and can a law such as California's Proposition 8 limit it in this way? Or can legal marriage be extended to same-sex couples?
The two sides
Civil rightsThose in the civil rights camp argue that marriage is a fundamental right, and that to deny that right to gays and lesbians on the grounds of their sexual orientation amounts to illegal discrimination, according to constitutional law scholar John Simpkins.Furthermore, granting gays and lesbians the same rights and opportunities as heterosexual couples does not infringe on religious freedom, according to the Rev. Jeremy Rutledge of Circular Congregational Church.“Every church is free to practice what it wants; that's always been protected in America,” he said. “It seems very clear to me what we're talking about is civil rights here.”Religious valuesThose who uphold conservative religious values say the long-accepted definition of marriage, as it is presented in the Bible, is under attack and, by extension, so is the definition of sin. The result is the erosion of traditional family values and the imperilment of children.The Rev. Kevin Baird of Legacy Church said religious tenets have always been part of the framework for civil society and he rejected the assertion that religion should not influence public policy.“There are many religious concepts that are codified,” he said. “So to say, 'You can't jam your religion down my throat' is nonsensical to me.”Adam Parker
There are peripheral questions of consequence: Can differing religious views influence public policy? Is it discriminatory to exclude gay and lesbian couples from the benefits, rights and privileges afforded opposite-sex married couples?
Timeline of gay rights movement
However the Supreme Court rules on the two cases before it this week, many observers are calling this a historic moment for a modern gay rights movement that began with the Stonewall riots of 1969 and the radical “liberation movement” it triggered.That awakening morphed by the mid-1970s into a moderated and inclusive movement focused on civil rights. The effort gained steam in the 1980s during the AIDS crisis. By the 1990s, LGBT youth organizations were forming, and people in that community were becoming more comfortable expressing their identities publicly.The first decade of the 21st century saw significant social and legal change. Sodomy laws in 14 states were struck down in 2003; anti-discrimination policies were adopted by an increasing number of public and private organizations; and gay marriage issues came to the fore.Adam Parker
Constitutional law expert John Simpkins, a Charleston School of Law fellow, said the court is justified in stepping in if democracy yields an unconstitutional result.
He said the justices could decide it's not for them to rule on these issues and return the cases to the lower courts, or they could dismiss them on technical grounds, or claim these are political and not constitutional concerns. Whatever they do, some risk is involved, Simpkins said.
“The risk for the court is whether the court as a body, or individuals on the court, want to be seen as the justices who rolled back the clock on civil rights,” he said. “That can be a compelling force.”
Lowcountry residents are keeping a close eye on the proceedings and wondering how their own lives will be affected. A rally Monday at the U.S. Customhouse on East Bay Street downtown is one of many coordinated gatherings of gay marriage supporters.
Heather Friedrichs Lyman, a gay woman in a committed relationship with two young children to care for, said she never imagined she'd “see the day that the Supreme Court took a stand for equality for LGBT people.”
“This is a dream I've spent the better part of 25 years not allowing myself to imagine because it seemed so impossible,” Lyman said.
Science and polling
Last week, the American Academy of Pediatrics for the first time endorsed gay marriage, citing a review of 60 scientific studies that appear to support the claim that children are better off growing up with married parents, gay or straight, than being raised by a single parent.
“Extensive data available from more than 30 years of research reveal that children raised by gay and lesbian parents have demonstrated resilience with regard to social, psychological, and sexual health despite economic and legal disparities and social stigma,” the report states. “Because marriage strengthens families and, in so doing, benefits children's development, children should not be deprived of the opportunity for their parents to be married.”
Brian Brown, president of the National Organization for Marriage, disparaged the AAP report, calling its “preposterous conclusion” a “transparently political” attempt to influence the Supreme Court.
“They have done a grave disservice to America's children by endorsing a policy that intentionally deprives children of either a mother or a father,” Brown said in a statement. “Their position seems to be that the unique contributions of both mothers and fathers do not matter.”
Polls show that a majority of Americans now support gay marriage.
A recent Washington Post-ABC News poll showed that as Americans increasingly view homosexuality as a question of identity and orientation, and not as a choice, their support for gay marriage has grown.
Of those polled, 58 percent believe it should be legal for gay and lesbian couples to marry; 36 percent say it should be illegal. Just 10 years ago, public opinion was almost exactly the other way around, with 55 percent opposed to gay marriage and 37 percent in support of it.
But scientific evidence and social trends have not assuaged everyone.
For many conservative Christians, gay marriage is considered unbiblical and homosexuality a sin.
The Rev. Kevin Baird of Legacy Church in West Ashley, said there are legitimate reasons the government should be involved in encouraging traditional marriage: It provides stability for couples and their children, and it “settles men down” and forces them to assume responsibility for their families, he said.
People are born male and female, not heterosexual and homosexual, he said. “They don't have to act on every proclivity.”
In an interview last week, Baird spoke somewhat reluctantly, noting that it has become increasingly difficult to have a good-faith, open debate about these issues without encountering the charge of bigotry.
He said he adheres to traditional definitions even as others succumb to trends and political correctness.
“My world view is around scriptural precepts — precepts that have endured the test of time, that are valid for every generation and every time period.”
Other religious people say gay marriage is a justice issue.
The Rev. Jeremy Rutledge, pastor of the liberal Circular Congregational Church, said the Bible doesn't present a single concept of marriage, and some of its definitions of marriage are considered abhorrent today.
That definition has changed radically since biblical days, and it can change more without sacrificing core social values, he said.
When he has presided over a same-sex wedding, the couple is engaged in a deeply human expression of love and communal blessing, Rutledge said. “They say yes to one another, and the whole community says yes to them. It's really a traditional kind of thing.”
Rutledge distinguishes between the sacrament of marriage, which is religious, and the legality of marriage, which is civil.
“I'm not advocating a law that mandates gay marriage and requires all pastors to do it,” he said.
Simpkins said the cases before the court this week ask whether marriage is a fundamental right that should be extended to all Americans regardless of sexual orientation.
“In order to limit that right, there is a very high burden,” he said. “The government must demonstrate that its actions are necessary to achieve a compelling (public) interest and are narrowly tailored to achieve that interest.”
Lyman said whatever the Supreme Court decides will impact her two young boys most.
“Because South Carolina offers no legal protection for children born or adopted into families with gay parents, we had to spend thousands of dollars and jump through all sorts of legal hoops just to try to 'buy' some of the legal protections automatically bestowed upon children born to legally married parents,” Lyman wrote. If she should die or become unable to care for her children, the legality of her partner's parenthood could be called into question.
If the court decided to extend marriage rights to gays and lesbians, she wrote, “it would mean we'd have tangible proof that the American promise of life, liberty and the pursuit of happiness includes us.”