NAMMO: Civility must start at the top

The high court tarnished itself by vilifying opponents of same-sex marriage

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Central to our civil society and its discourse is that we can strongly disagree with each other and yet be, well, civil. Our political society, built on freedom of speech, allows much play in the joints for expression of various opinions. The oil that keeps those joints from grinding on each other is often called civility, a willingness to listen to other points of view politely and, while expressing disagreement, not vilify the speaker.

While this civics lesson is taught in secondary schools throughout the land, it has had no greater proponent over the years than the U.S. Supreme Court. This most distinguished court throughout our history has championed minorities when their unpopular speech and stances have been throttled — Jehovah’s Witness children cannot be forced to pledge allegiance to the flag. protesters of foreign wars must be allowed to burn it, and unpopular groups must be given equal access to speak in public forums.

It must be asked, then, whether we have taken a major step backward with the Supreme Court’s June 26 decision in U.S. v. Windsor, which found unconstitutional the Defense of Marriage Act’s definition of marriage as only between a man and a woman. DOMA was passed in 1996 by large majorities in both houses of Congress and signed into law by President Clinton. Its stated purpose was to assure uniformity for how citizens were treated by federal laws (some 1,000 strong) that made marriage relevant. Recognizing that some states were considering same-sex marriage and others were not, Congress elected to define “marriage” as it had been understood when those laws had been enacted, which sometimes benefited and sometimes disadvantaged married persons.

The question of whether same-sex marriage should be officially recognized has been the subject of extensive debate. For years, President Obama had opposed it but in 2012, he stated that his views had “evolved.” In reversing course, Mr. Obama did not cast aspersions on those who still disagreed with them. He went out of his way to be civil, remarking that supporters of marriage as only a male-female union “are not coming at it from a mean-spirited perspective. They’re coming at it because they care about families.” The president added that “a bunch of them are friends of mine people who[m] I deeply respect.”

The Supreme Court majority in Windsor apparently can’t say the same. Instead, it blasted Congress for what it perceived to be active malevolence, claiming that DOMA was “designed to injure,” “degrade” and “disparage,” with its “avowed purpose” to “impose a disadvantage” and a “stigma” upon same-sex couples. Warming to its theme, the majority concluded that the act made same-sex couples “second-tier,” “demeans” them, and “humiliates” their children.

In other words, according to the Windsor majority, the legislators who passed the Defense of Marriage Act, and President Clinton, who signed it into law, were bigots and haters, they were filled with irrational animus, and their views on this subject are not worthy of consideration in the ongoing debate in our country. While noting that only 12 states, including New York, have as yet legalized same-sex marriage, the majority put those 12 on the side of the angels — as part of the “evolving understanding of the meaning of equality.”

Employing the type of rhetoric, the Windsor majority is not conducive to civility. One must conclude, under the majority’s reasoning, that Mr. Obama was also a bigot until a few months ago, when his view “evolved” to the “enlightened” conclusion of the Windsor majority. Before then, he was on the wrong side of the issue, a hater seeking to “humiliate” same-sex couples, their children, and their proponents.

No, Mr. Obama was not a bigot. He had it right. Even as he changed his personal view, he acknowledged that those defending traditional marriage were not mean-spirited, but expressing an honestly held opinion about what is best for the family and, ultimately, this country.

This is not to argue the legal merits of the DOMA. It is, however, voicing a word of warning about using the type of rhetoric the Windsor majority did. In both the short and the long run, it will serve no one’s legitimate purposes to demonize those holding opposing views or to declare those views on marriage “off limits” to debate. It is possible — indeed, essential — for those who support same-sex marriage to respect those who support traditional marriage, and vice versa. Vilifying opponents does not further the “evolution of equality.” Rather, it erodes that evolution and our civil society along with it. The Windsor majority flunked this basic, high school civics lesson.

David Nammo is the executive director and CEO of the Christian Legal Society.

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