Opinion: Morality No Longer At Center Of Marriage Debate

I am heartened that the terms of the debate are changing. Last week, the U.S. Supreme Court heard oral argument in the two most important civil rights cases to come before it in decades: Hollingsworth v. Perry and United States v. Windsor, aka, the same-sex marriage cases. One of the more significant aspects of the arguments was that counsel for the petitioners did not rely on morality as a rational basis for denying same-sex couples a civil right that the government grants to heterosexual couples. This shift in tactics is likely born out of a seismic shift in our national attitude towards same-sex marriage that, in the words of the great R&B singer Sam Cooke, has been a long time coming.

That moral opprobrium for homosexuality has lost its luster as a justification for laws like Defense of Marriage Act and Proposition 8 is a gladdening bellwether of progress. Less than three decades ago, in Bowers v. Hardwick, the Supreme Court curtly dismissed the notion of any constitutional protection for homosexual couples, with then-Chief Justice Warren Burger penning a concurrence that owed more to Jerry Falwell than to John Marshall: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization," Burger wrote. "Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." Never mind that the issue in Bowers was solely the equal protection of civil rights, not religious sanction or moral approval.