What a difference a day makes. The Supreme Court on Wednesday morning struck down the federal Defense of Marriage Act. The ruling, as expected, does not establish a universal right to same-sex marriage. But Justice Anthony Kennedy, writing for a five-to-four majority, eschewed a narrow opinion that threw out the law simply on federalism grounds. Instead, Kennedy and the four liberal justices declared that DOMA deprives same-sex couples of “equal protection” under the law.
It always takes a little time to digest and analyze these rulings fully. But legal experts I consulted think the decision may create a legal principle (and political momentum) that advocates for same-sex marriage can use across the country, particularly in states that have so far resisted same-sex marriage. “The decision is formally limited to marriages that states have recognized, and the Court's discussion has undoubted federalism overtones,” says Sam Bagenstos, a constitutional law professor at the University of Michigan. “But Justice Kennedy's majority opinion explicitly grounds the decision in equal protection, not federalism, principles, and the opinion is full of language and reasoning that lay a roadmap for constitutional marriage equality in all 50 states.”
After the decision came down, the plaintiffs challenging California's same-sex marriage ban (which the Court also struck down, though on narrower grounds) held a press conference on the steps of the Court. David Boies, their attorney, noted that the ruling came ten years, to the day, after the Court struck down anti-sodomy laws. That decision “took the first important step guaranteeing that all Americans, regardless of sexual orientation, were equal citizens under the law,” Boies said. And “today, the US Supreme Court … brings us that much closer to true equality.” In his comments, Boies referred pointedly to the “so-called Defense of Marriage Act,” a point co-plaintiff Jeff Zarrillo reinforced when he said “Our love is just like our parents and grandparents … I look forward to growing old with the man I love … We look forward to using the words ‘married’ and ‘husband,’ because those words do matter.”
Moments later, co-plaintiff Paul Katami turned to Zarillo and, choking up, said, "Today is a good day. It's the day I finally get to look at the man that I love, and finally say, 'will you please marry me'?"
But an equally poignant moment came when another co-plaintiff, Kris Perry, took her turn at the microphone. In their arguments before the Supreme Court, opponents of same-sex marriage had made the case that marriage existed for the sake of procreation—and that same-sex couples could not provide the same loving, supportive homes that heterosexual couples do. If you know same-sex couples with children, as I do, that probably sounds preposterous. The best research suggests that intuition is correct. In briefs filed with the Court, the American Psychological Association, the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, and the American Sociological Association all argued that same-sex parenting causes no harm.
Perry, as it happens, knows quite a lot about what’s good for kids. She’s executive director of the First Five Years Fund, a non-profit that advocates for, and supports, early childhood education—with a particular focus on children who grow up in poverty or with other disadvantages. I’ve spoken to Perry previously, while reporting on early childhood care and education, but somehow I never made the connection to the Supreme Court case until a few days ago. I was trying to set up an interview for an article, and a press contact at First Five Years mentioned that this week could be a little tough, because Perry had to be at the Court.
Not surprisingly, Perry’s comments focused on the children—in the U.S., and in California, and in her very own home: “We believed from the very beginning that the importance of this case was to send a message to the children of this country that you are just as good as everybody else, no matter who you love, no matter who your parents love,” Perry said. “And today we can go back to California, and say to our own children, all four of our boys, your family is just as good as everybody’s else’s family, we love you as much as anybody else’s parents love their kids, and we are going to be equal.”
Jonathan Cohn is a senior editor at The New Republic. Follow him on Twitter @CitizenCohn
This item has been updated.