Marriage Equality and the Journey Ahead

This week, the Supreme Court ruled in favor of those advocating marriage equality twice, by ruling that the Defense of Marriage Act or “DOMA” was unconstitutional and by not choosing to overturn the 9^th Circuit Court’s ruling that Prop 8 in California was un-Constitutional.

While I certainly appreciate these decisions, I have found my joy tempered for a number of reasons. First, it appears that the primary reason that DOMA was ruled un-Constitutional was that the court believed that the Federal government overstepped its bounds and took action on something reserved for the states.

 The court held that DOMA "because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage." DOMA’s "demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law," the majority ruled. "This raises a most serious question under the Constitution’s Fifth Amendment." Huffpost

In other words, while those marriages performed in Iowa will now be recognized by the Federal government, there is no mandate that other states must allow or recognize same sex marriages.

As for the refusal of the Supreme Court to rule on Proposition 8 and to overturn the 9^th Circuit Court’s ruling, Chief Justice Roberts, writing for the majority, stated that

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” Huffpost

It is important to note that this 5-4 ruling was not the traditional 5-4 split between Conservatives and Progressives, but rather included a mix of both with Roberts and Scalia joining Breyer, Kagan, and Ginsburg in the majority. The fact that the court did not hear the appeal limited the impact of the case to California alone.

The court did not declare all of the Defense of Marriage Act un-Constitutional, nor did it offer a ruling on Prop 8, potentially expanding the decision so that it would prevent other states from enacting similar legislation. There is a long way still to go in the fight for marriage equality.

On Wednesday, the Reform Movement issued a statement that I would like to share with you tonight:

Today’s Supreme Court ruling on marriage equality is a significant victory for the protection of Americans’ civil rights. No longer will lesbian and gay couples remain invisible to the federal government; no longer should there be doubt about the legal legitimacy of these partnerships.

The Defense of Marriage Act (DOMA), which we vigorously opposed when it was first considered, has been an offensive and discriminatory measure since its passage in 1996. Since then millions have been denied fundamental rights because of the impact of this ill-advised law. Though that law still stands, today’s ruling in Windsor v. United States promises to lessen some of its most damaging effects. By striking down Article Three of DOMA – a section of the law that the Obama Administration stopped defending several years ago – the Court has enabled legally married same-sex couples to receive the same federal benefits, rights and responsibilities as married heterosexual couples.

Sadly, too many couples across America are still denied the fundamental right to marry. The Court’s ruling in Hollingsworth v. Perry effectively expands that right to tens of millions more Americans. The Court missed an opportunity to take a stronger stand for marriage equality today, yet it is a step toward greater civil rights for millions of Americans.

There is no more central tenet to our faith than the notion that all human beings are created in the image of the Divine, and, as such, entitled to equal treatment and equal opportunity. Many faith traditions, including Reform Judaism, celebrate and sanctify same-sex marriages. Thanks to the Court’s decision, the federal government will now recognize these marriages as well, while still respecting the rights and views of those faith traditions that choose not to sanctify such marriages.

Inspired by our Movement’s longstanding commitment to civil rights, we joined in amicus briefs to the Court in both the Perry and Windsor cases. We look forward to the day when full civil marriage equality is the law throughout the country, reflecting our nation’s historic commitment to the civil rights of every individual. In the meantime, today’s decisions will inspire us to continue to seek justice for all.

While some have said Shecheheyanu, I don’t think we’ve arrived at that day yet. We certainly should not be saying, “Dayeinu.” This isn’t enough.

For the past two days, I have found myself smiling, sometimes with a tear in my eye, as I hear or read the stories of those loving couples who will find their lives improved because of these court decisions. But I have also found myself sickened by some of the commentary that I have heard and seen. I know beyond any doubt that those who wish to discriminate and those who hate will ratchet up their efforts in the months ahead. The leading opponents to same sex marriage are not all right wing Christian Fundamentalists with whom we have rarely worked on social issues. Instead we find the Catholic Church, among our closest of friends in many social efforts, taking the lead.

Cardinal Timothy Dolan, head of the United States Conference of Catholic Bishops (USCCB), referred to Wednesday’s decisions as “a tragic day for marriage and our nation.” Blasting the Supreme Court for dealing “a profound injustice to the American people,” Dolan flatly asserted, “The Court got it wrong. The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so. The preservation of liberty and justice requires that all laws, federal and state, respect the truth, including the truth about marriage.”

Pat Archbold at National Catholic Register wrote:

With the universal legal recognition of same-sex marriage a fait accompli, the next fight will on the Church doorstep. The next battle will be to force Churches, most particularly the Catholic Church, to recognize and conduct same-sex marriage. The refusal to do so will result in a series of escalating legal and financial ramifications.

Eventually, because of its refusal to recognize immoral unions as marriage, the state will refuse to recognize Church marriages. As a result, more and more people will bypass Church marriage altogether, further marginalizing faith in this country. This effort is and has always been a war against religion and in particular a war against the Catholic Church. Right now, it is a war we are losing and after today, perhaps it is fair to say that we lost.

Breitbart

Those of us who believe in a strong separation of Church and State and in the Freedom of Religion will stand up and defend the rights of others to not believe what we do and against all who would press their religious beliefs or anti-religious beliefs on religious organizations. In fact, in our minds, that is exactly what the Supreme Court has done in removing these restrictions upon those of us who support Marriage Equality, allowing those who support marriage equality to do so without infringement. The court did not issue any mandate demanding that religious groups that do not support same sex marriage must now do so. 

We may well be headed toward a full separation of the performance of religious based marriages and legal state and federally recognized unions. In fact, civil unions based upon secular laws and applying to property and benefits are most likely ahead. In most Western nations, people wishing to get married go to the state to get a civil union and then, if they choose, have a religious marriage ceremony.

Meanwhile, the Catholic Church is far from alone in its condemnation of the decisions.

The Traditional Values Coalition said that civilization eroded today. And former Arkansas Governor Mike Huckabee, now a Fox News personality, declared that Jesus wept. Breitbart

I came across several responses to Huckabee saying that “Jesus’ had tears of joy.”

What I find most troubling in dealing with all of this is that while we struggle to find reasonable discourse on many issues and we strive to hold discussions with a sense of consideration and respect for the views of the other and for others as such, in this case all too often responses have been not only disrespectful but disgusting and hateful. Not only has the word “sin” been thrown around indiscriminately over the past couple of days, something which at least could be discussed in a religious context, but advocates for equality such as myself were accused of doing Satan’s work, promoting evil, destroying society, destroying families, destroying America. In the face of that, how can I truly rejoice?

I’m happier than I would have otherwise been, but I’m not ready to declare victory yet. The other side recites the words of John Paul Jones, “I have not yet begun to fight.” We should not yet begin to rejoice.

I find it all too appropriate that this week’s Torah portion is Pinchas. It is one of my least favorites. In it Pinchas and the people are said to have been blessed by God because Pinchas was righteous. What did Pinchas do to earn that blessing? He killed an Israelite and a Midianite woman because he believed their relationship to be an abomination.

We do not believe our texts to be the word of God and we challenge what they teach us. Others do not. We have a long way to go in the struggle for marriage equality and even a longer way to go in the struggle for respect and care for all of those created in the image of God.

We are not yet nearly as Moses standing upon Mount Nebo overlooking the Promised Land. Instead, we are more like the Israelites leaving Egypt before ever reaching the Reed Sea: granted freedom but pursued by those who would take it away and with a long difficult journey ahead.