Reading former Congressman Zach Wamp’s clarification of his views on the Defense of Marriage Act has been helpful. Although we should all cheer that he would not vote for DOMA if he were in Congress today, we can also take a lesson from his comments that reveal the hopes and strategy of social conservatives as the marriage debate evolves.
Trying to put on brave faces, social conservatives are clinging to the misguided idea that the DOMA ruling (U.S. v. Windsor) simply reaffirms a state’s rights position in the realm of marriage. They take comfort in this line of thinking and bolster it with connected ideas that the states themselves have spoken by passing marriage bans.
In short, they want the story to end with the line “And the states lived happily ever after.”
There are two problems with this artificial ending: The Supreme Court’s DOMA ruling contains the seeds of destruction for state marriage discrimination amendments. And the states are still speaking.
Though the DOMA ruling did not decide the question of whether state constitutional amendments that ban same-sex marriage are constitutional, Justice Anthony Kennedy, writing for the majority, noted many harms of marriage inequality to families and individuals. Furthermore, he noted that although marriage laws are a state prerogative, they are also subject to constitutional guarantees. Surely we will hear these same arguments repeated in challenges to state bans on same-sex marriage.
And here we find a fundamental problem with Wamp’s passing reference to his preference to define marriage based on a biblical worldview. One might ask, “Which version of biblical marriage?” but I’ll stick to the Constitution. The key test in the Constitution for state laws is not one person’s private views about his or her religious text, but rather it is the 14th Amendment, part of which says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“Equal protection of the laws”-I know of no way to read that phrase that would allow discriminatory state constitutional marriage bans to stand forever. In fact, the court challenges have already begun. We learned last week that a federal court has given the green light for a case to proceed against Michigan’s ban on same-sex marriages.
But let’s say that the court challenges don’t work out or take years. The story is still not over. Though Wamp and others say the states have spoken, actually, the conversations are still going on. A recent Vanderbilt poll found that 49 percent of Tennesseans supported either marriage equality or civil unions and that 62 percent support same-sex partner health insurance benefits. Across the country, support for marriage equality is rising steadily. If the courts don’t overturn state same-sex marriage bans, the people eventually will.
No doubt we have a long road ahead of us in Tennessee to reach marriage equality. The efforts of social conservatives to pretend that the story is over won’t stop the courts or the people from writing new chapters in the unfolding American epic of freedom.
Chris Sanders, acting executive director, Tennessee Equality Project
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