The past six months have been something of a whirlwind for those of us who support civil same-sex marriage (or, more accurately, same-gender marriage). It started with a pair of Supreme Court rulings in late June that gutted DOMA and effectively legalized marriage equality in California. In the ensuing months, five states–Delaware, Hawaii, Illinois, Rhode Island, and Minnesota–each enacted laws granting marriage equality to their gay citizens. And state courts in New Jersey and New Mexico did the same. Then, to cap off the year, federal courts in Utah and Ohio called those states’ bans on same-sex marriage into question as well. For those of us who lived through the dark days of 2004, when states were falling over themselves to write marriage inequality into their constitutions, the past six months represents an amazing turnabout. There’s still a lot of mopping up to do. But victory is in sight more clearly than it’s ever been before.
The outcome in the Windsor case wasn’t that big of a surprise to me. I expected a divided Court to give Edie Windsor a victory, and I expected the decision to turn on narrow technical questions of state sovereignty, federalism, and Congressional overreach. The precedential effects would be minimal, or so I thought. Instead, Justice Kennedy wrote a sweeping opinion that denounced DOMA, not merely as an affront to federalism, but as an affront to basic human dignity. Andrew Sullivan noted the degree to which Justice Kennedy’s opinion relied on traditionally Catholic concerns for human worth and inherent rights. As such, the Court recognized that same-sex marriage isn’t ultimately about memorializing the right to engage in gay sex. Rather, the Court gave voice to the full complexity of human emotions that go into any decision to marry–even when those emotions are those of a gay couple. And in so doing, the Supreme Court expressly acknowledged our humanity in a way that it never had before. It’s simply impossible to underestimate the persuasive moral authority of that pronouncement.
But is this a Catholic idea? Socially conservative Catholics, including some of the dissenters in Windsor, probably beg to differ. This talk of human dignity and inherent rights sounds more like the stuff of the Enlightenment, right? Or at least that’s what a lot of social conservatives would have us believe. But as medievalist Brian Tierney demonstrated in his book, The Idea of Natural Rights, the concept of inherent human rights (and inherent human dignity) predate the Enlightenment by several centuries. Catholic canon lawyers were routinely relying on such principles as early as the 1100s. Ockham and other nominalists were merely borrowing these principles from the Church. And it’s not too much of a strain to see these same principles at play in the writings of Luther, Calvin, Vermigli, and other early Reformers. So, I disagree with Sullivan. Human dignity isn’t merely a Catholic idea; it’s a thoroughly Christian idea.
And it’s become an American idea. The early nominalists borrowed it from Christianity, and made it a part of the Enlightenment project, to which our Constitution largely owes its origin. So, Justice Kennedy was actually channeling a principle that’s been part of our Western self-conception for almost a millennium. And, in Windsor, he applied that principle to us. We gays have long been convinced of our own humanity, but we weren’t sure that anyone else was. To many, we were nothing more than walking caricatures of sexual desire run amuck. Even such a low status may yet entitle us to win at the Supreme Court. But it wouldn’t entitle us to win with our dignity intact. So, in that sense, Justice Kennedy’s opinion marks an enormous sea change in the public discussion of gay rights and same-sex marriage. No longer can we broach these discussions as a nation without also acknowledging the human dignity of gay people. The implications of that are simply staggering!
As a postlude, I want to commend the recently released documentary film, Bridegroom, which tells the story of Tom Bridegroom and his partner, Shane Bitney Crone. Few people read Supreme Court opinions. So that’s where film comes in, I suppose. Bridegroom tells the story of Tom and Shane’s relationship, Tom’s unexpected death as a result of a freak accident, and the ensuing struggles Shane endured due to their inability to be “married” at the time of Tom’s death. This film, more than any I’ve seen, brings to life the principles of human dignity that echo repeatedly through Justice Kennedy’s Windsor opinion. Its release couldn’t have come at a better time.