Power Play

Obama-Court alliance on gay marriage sets up tough road ahead for same-sex union foes

Ruling says defenders did not have right to appeal lower court rulings that struck down Proposition 8


The Supreme Court's rulings this past week on gay marriage signal that social conservatives looking to advance their fight against same-sex unions could be in for a rocky road ahead. 

In its more modest decision this week, the court issued a narrowly tailored ruling that had the effect of reinstating gay marriage in California. But it was the decision on the Defense of Marriage Act that provided the strongest language, and the best indication of where the court's majority stands on the broader issue -- whenever it returns to the nation's most powerful justices for review. 

The majority opinion, authored by swing justice Anthony Kennedy, was unequivocal, at times suggesting efforts to limit gay marriage are morally indefensible. The opinion said the DOMA law, which defined marriage as between a man and woman, "humiliates" the children raised by gay couples. 

"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways," the majority wrote. 

The court's conservative justices fumed at this language, with Justice Antonin Scalia accusing his colleagues of deeming gay marriage foes "enemies of the human race." 

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The opinion, though, was an outright victory for Obama -- who has actually endured a string of defeats before the high court this year. Perhaps the biggest blow came Tuesday when the court stopped the Justice Department from singling out certain states for challenges to their voting laws. One report estimated the administration lost two-thirds of the cases it had before the court this session. 

But on gay marriage, Obama won big. The court effectively backed him up on two controversial moves -- the decision not to defend the Clinton-era marriage law in court, and the president's personal endorsement of gay marriage last year. 

Importantly, on the merits of the gay marriage debate, the ruling put two of the three branches of the federal government on the same page. Going forward, the ruling establishes an Obama-Supreme Court alliance that will loom large over future efforts to restrict same-sex marriage. 

On that point, conservative justices and social conservative activists blasted the high court for the scope of its opinion. 

Scalia, who voiced seething frustration, accused the court of overstepping its bounds in order to "pronounce the law."   

Further, he said that assertions that DOMA would humiliate children and impose inequality will in effect stack the deck against any state trying to limit gay marriage going forward. 

"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," Scalia wrote. "The result will be a judicial distortion of our society's debate over marriage." 

The gay marriage debate at the state level will continue to play out, as the California Proposition 8 decision stopped short of declaring a universal right to same-sex marriage. 

Thomas Reese, a senior analyst for National Catholic Reporter, argued that the bishops in states across the country are now faced with a tough choice, depending on where they are. 

"Bishops in states that have legalized gay marriage may conclude that it is politically impossible to reverse the decision in their states and (therefore) admit defeat and move on," he wrote. "Bishops in red states where gay marriage is not legal may judge the fight worth making because with other allies they have a good chance of maintaining the status quo. The tough call will be for bishops in blue states where polls show growing support for gay marriage. Here they must choose between fighting gay marriage or negotiating exemptions for the church as a price for their silence." 

The court's majority opinion on the issue may be more a sign of the times and the tenor of the national debate -- fueled by Obama's pronouncements -- than a product of the president's appointments. 

The two reliably liberal justices that Obama has appointed, Sonia Sotomayor and Elena Kagan, indeed sided with the majority. But the balance of the court is the same as it's ever been, as those two replaced two other traditionally liberal justices. 

Social conservatives claimed that, rather, the high court on Wednesday followed the leader of public and political opinion. 

"You have to ask yourself what has changed?" Pastor Robert Jeffress, with the First Baptist Church in Dallas, told Fox News after the ruling. "The Constitution hasn't changed. What has changed is the culture. The Supreme Court caved to political correctness." 

Over the past 10 years, public opinion has gradually shifted to become more accepting of gay marriage -- as has Obama's "evolution" on the issue. A Gallup survey in May showed Americans' acceptance of gay relationships at a record high, with 59 percent calling them morally acceptable. 

Scalia charged that his counterparts were itching to dive into this debate from Washington. 

"The Court is eager -- hungry -- to tell everyone its view of the legal question at the heart of this case," Scalia wrote. 

He argued that the court did not even have to get involved in this case, as the plaintiff had won a lower-court argument. That the Supreme Court heard the case in order to review the underlying law, he said, is "jaw-dropping." 

"It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions," he wrote. 

Sen. Marco Rubio, R-Fla., said he understands that attitudes toward same-sex marriage are changing. But he accused the court of overreaching on this case, having "second guessed the will of the American people acting through their elected representatives." 

The former president who signed DOMA into law, though, did not feel the same way. 

In a statement, Bill Clinton said: "By overturning the Defense of Marriage Act, the Court recognized that discrimination towards any group holds us all back in our efforts to form a more perfect union."