Voices
passed the Defense of Marriage Act
(DOMA). As Justice Elena Kagan
pointed out last Wednesday, the report prepared by the House of Representatives Judiciary Committee
justifying DOMA stated that in enacting DOMA “Congress decided to
reflect and honor a collective moral
judgment and to express moral disapproval of homosexuality.”
Seven years later, in Lawrence
v. Texas, the Supreme Court invalidated a Texas statute criminalizing same-sex sodomy. It was another doctrinal win for gay rights,
but another public condemnation
of the morality of gay rights. In its
brief, and in oral arguments, the
State of Texas justified criminalizing same-sex sodomy as part of its
“promotion of morality.”
To be sure, the spectacle outside of the Court last week still
featured demonstrators condemning homosexuality on moral
grounds. Inside of the Court,
though, things were different. Last
Tuesday, Charles Cooper appeared
before the Court to defend the
constitutionality of California’s
Proposition 8 banning gay marriage. Cooper argued that Proposition 8 was not based simply on
“anti-gay malice.” His argument
instead relied substantially on
DAVID
FONTANA
the language of empirical uncertainty rather than moral condemnation. Cooper argued that “it is
impossible for anyone to foresee
the future accurately enough” to
know the empirical consequences
of legalizing gay marriage.
Justice Scalia talked about gay
marriage differently as well. One
month ago he talked about the
Voting Rights Act during oral arguments as a “racial entitlement.”
Last Tuesday, by contrast, he
asked whether there was a “scientific answer” to questions posed
by “sociologist[s]” about the differences in families headed by
same-sex couples. Justice Samuel
Alito remarked “there isn’t a lot of
data” about these families but that
gay marriage “may turn out to be
a good thing.” During Wednesday’s
oral argument in the DOMA case,
when Kagan read the statement
from the House Report about morally condemning gay marriage, former Bush Administration Solicitor
General Paul Clement stated that
the defenders of DOMA in this
case have “never invoked” those
morality arguments.
If anything, the most morally infused language from the
week was the language supportive of gay marriage. Last Tuesday,
HUFFINGTON
04.07.13