New York Daily News

Conservati­ves, cheer this ruling


The Supreme Court’s landmark rulings in two same-sex marriage cases take a significan­t step toward nationwide marriage equality for lesbian and gay couples. Renouncing the most sweeping anti-gay measure in American history, the court ruled that the Defense of Marriage Act unconstitu­tionally denied more than a thousand federal marriage rights to same-sex couples. In the companion case, the court dismissed the appeal taken by the supporters of California’s Prop. 8; that ruling will leave in place the trial court’s judgment invalidati­ng that initiative barring gay marriage, soon making California the 13th state to recognize marriage equality.

This is the Cinderella moment for gay rights, when the once-scorned maiden meets her Princess Charming. It is also a formative moment for American conservati­ves, many of whom support marriage equality (like former Vice President Dick Cheney and his wife, Lynne Cheney). Conservati­ves from coast to coast should begin to perceive gay marriage not as a threat but as an opportunit­y. Why? 1. Constituti­onal equality. In the DOMA case, the court rested much of its reasoning on bedrock U.S. legal traditions. When the broader question of whether gay married couples deserve equal protection under the Constituti­on — left undecided for now — returns to the court in a few years, conservati­ves ought to follow the U.S. tradition of opening up civic institutio­ns to all citizens and support marriage equality.

In the past, some conservati­ves have argued that the Constituti­on’s equal protection clause does not apply to discrimina­tion that, in retrospect seems obvious — such as Southern states’ bars to different-race marriages. The Supreme Court struck down this discrimina­tion in Loving vs. Virginia (1967). From a conservati­ve perspectiv­e, the court was right to do so, because marriage is a fundamenta­l civic institutio­n, presumptiv­ely open to couples willing to take on its duties and commitment­s.

It is self-evidently a violation of equal protection of the law for states to exclude committed lesbian and gay couples, many of whom are raising children, from civil marriage, without strong justificat­ion. Under the rule of law, it is not enough that people disapprove of certain relationsh­ips. For the same reason the court was right to strike down different-race marriage exclusions in Loving, the court ought to strike down same-sex marriage exclusions.

The next wave of cases will provide con- servative jurists the opportunit­y to reveal their principled commitment to rules of law regardless of personal preference­s.

2. Family. DOMA rested on the claim that civil marriage would be undermined by recognitio­n of lesbian and gay unions. Is this true? David Blankenhor­n, a defense trial expert in the Prop. 8 case, recently changed his mind, based upon the evidence: marriage equality in Europe, Canada and the United States has not undermined committed families. Indeed, the social movement for marriage equality has highlighte­d the virtues of marriage and has added thousands of eager recruits to the institutio­n.

In light of the evidence, conservati­ves ought to welcome gay marriage — or at least redirect their energies to flagging policies that actually undermine family values, such as domestic abuse and easy divorce.

As marriage equality advances in public support, traditiona­lists in red states might even consider a grand bargain: their support for marriage equality, in return for progressiv­es’ support for an additional institutio­n of covenant marriage, where divorce is somewhat harder.

3. Religion. Opposition to marriage equality is sometimes rooted in religious beliefs that homosexual relations are sinful. But Southern Protestant­s once believed that the Bible supported segregatio­n and bans on different-race marriage.

They no longer believe that, because the civil rights movement (and Loving) opened their hearts to a different reading of Scripture. In other words, legal equality can have a salutary effect on religious discourse.

Just as Jesus said nothing to support racial segregatio­n, neither did He say anything about homosexual relations. (In Matthew 19:9, He did condemn straight people who remarry after securing no-fault divorces.)

Many religious scholars have interprete­d Scripture to support committed samesex unions. The marriage equality conversati­on provides persons of faith, their families and their congregati­ons with an opportunit­y to reconsider the Bible’s most important lessons.

Conservati­ves ought to consider the virtues of Cheney family values. If they approach the issue seriously, they can reclaim some of the high ground in American public culture and politics that they have lost in the new millennium.

Eskridge and Spedale are the co-authors of “Gay Marriage: For Better or for Worse? What We’ve Learned From the Evidence.”

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