One reason Americans have moved so rapidly toward support of same-sex marriage is their stubborn bias toward liberty. When interest groups demand something material, or when they seek to take something from other groups, the public is apt to resist. But when a group asks to live and let live, it can usually count on getting its way.
Legal scholars have long thought that if the Supreme Court upheld same-sex marriage, it would base that decision on the 14th Amendment's guarantee of "the equal protection of the laws." When Justice Anthony Kennedy made the case for overturning the Defense of Marriage Act, though, he relied on a different provision. DOMA, he wrote, "is a deprivation of an essential part of the liberty protected by the Fifth Amendment."
The right to marry a person of the same sex fits perfectly within Thomas Jefferson's conception of freedom. "It does me no injury for my neighbor to say there are twenty gods or no God," he wrote. "It neither picks my pocket nor breaks my leg."
The beauty of gay marriage is that it grants something to one group that doesn't come at the expense of anyone else. Heterosexual rights are undisturbed. Straight people could marry before any state legalized same-sex matrimony, and likewise after.
That fact explains why so many non-gays have come to embrace the idea. But it presents a high hurdle for opponents of same-sex marriage. Even Americans who have moral qualms about it may not think the law should try to dictate morality.
After all, the Supreme Court said in 2003 the Constitution protects the freedom of adults to engage in sodomy -- a decision that conservatives spent five minutes denouncing and never mentioned again. (Well, except for Attorney General Ken Cuccinelli of Virginia, who wants to reinstate its ban.) It's a small step from saying people should be free to have sex with whomever they want to saying they should be free to marry whomever they choose.
So how did staunch opponents of gay rights react to the decisions striking down DOMA while upholding marriage equality in California? By claiming that it would trample on their rights.
Thomas Peters, the communications director for the National Organization for Marriage, told me, "Same-sex marriage and religious freedom don't coexist very well. In fact, they probably are mutually exclusive."
Bryan Fischer of the American Family Association called the DOMA verdict "the greatest threat to the First Amendment in history." The Liberty Institute said the rulings will mean "attempts to use government to punish those who disagree" and "create a climate of fear and oppression."
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