I’ve been thinking lately of the mosque being built near ground zero and the same-sex marriage ruling. These two big culture war issues share a lot in common. Both involve unpopular groups seeking the freedom to enjoy their fundamental rights — freedom to worship and freedom to marry — without having the public's disapprobation be the determining factor in whether they will be treated as equals under the law.
On the mosque, New York City Mayor Michael Bloomberg offered a humane response to critics, reminding them that it is unconstitutional for government to favor one faith over another. "Whatever you may think of the proposed mosque and community center," Bloomberg said on the day the city's Landmark Preservation Commission okayed the project, "lost in the heat of the debate has been a basic question — should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion?"
He recounted New York's backward history, and how, in the mid-1600s the notoriously anti-Semitic Dutch Governor Peter Stuyvesant turned down the request of the small Jewish community to build a synagogue. And in the early 1700s, how it was illegal for Catholic priests to enter New York. Such intolerance reflected the abiding sentiments of the time. Jews and Catholics were disfavored, even despised. Now it's Muslims.
So too did U.S. District Judge Vaughn Walker invoke an invidious past to demonstrate how public policy surrounding marriage has historically reflected entrenched social inequality, and how it often took the courts to move things along.
Public sentiment once strongly supported the anti-miscegenation laws that were still in force in 16 states when the Supreme Court struck them down as unconstitutional in 1967. People generally believed that if they allowed marriage across color lines, they would somehow degrade and devalue the institution. Similarly, the American public saw rigid gender roles within marriage as the institution's essential characteristic. Laws codifying women's subjugation to their husbands, denying married women their own earnings or the right to own property, were seen as vital reinforcements to the institution of marriage.
But as courts and legislatures dispensed with these vestiges of social inequality, the core of the institution of marriage did not change. What did change was government's role as the ultimate moral scold and reinforcer of stereotypes — a role that the Constitution never granted it.
Which brings us to the present and the question of whether the prohibition against gays and lesbians gaining official recognition for their relationships is another unfortunate blind spot? Walker's 136-page decision enjoining California's Proposition 8, answers with a resounding "yes." His meticulous ruling knocks down every possible constitutionally legitimate rationale for the government denying marriage rights to same-sex couples.
On children, although same-sex couples can't have biological children, the state's interest in marriage has never been a procreative one. Infertile couples and those who never intended to have children have always been granted marriage rights. But the state does have a legitimate interest in the care and protection of children. To this, Walker found that research unequivocally shows that children are just as healthy and well-adjusted when raised by same-sex parents as when raised by heterosexual parents.
The state also has an interest in protecting the vitality of marriage as an institution. But same-sex couples have been marrying for years in Massachusetts without impacting the marriage and divorce rates of the state's opposite-sex couples. There is no evidence that this diminishes the institution in any way. And the state's interests in encouraging sexual activity within marriage and the formation of stable households for the support of dependents are advanced, not hindered, by same-sex marriage.
All that remains as a rationale for state-sponsored discrimination, Walker notes, is moral disapproval and social animosity toward gays and lesbians, reasons that are not constitutionally recognized.
Walker's ruling is not the opinion of one man, as critics claim. It is the methodical parsing of what is valid and invalid when denying a disfavored group their fundamental rights. That's what courts do. They stand for the unpopular, when the public can't see past its own biases. And in the end, history inevitably approves.