[Re-posted from earlier today] 
 
 Some final thoughts after so many years of so many thoughts. Marriage is not a political act; it’s a human one. It is based on love, before it is rooted in law. Same-sex marriages have always existed because the human heart has always existed in complicated, beautiful and strange ways. But to have them recognized by the wider community, protected from vengeful relatives, preserved in times of illness and death, and elevated as a responsible, adult and equal contribution to our common good is a huge moment in human consciousness. It has happened elsewhere. But here in America, the debate was the most profound, lengthy and impassioned. This country’s democratic institutions made this a tough road but thereby also gave us the chance and time to persuade the country, which we did. I understand and respect those who in good conscience fought this tooth and nail. I am saddened by how many failed to see past elaborate, ancient codes of conduct toward the ultimate good of equal human dignity. I am reminded of the courage of a man like Evan Wolfson who had the vision and determination to change the world. 
 
 But this happened the right way – from the ground up, with argument, with lawsuits, with cultural change, with individual courage. I remember being told in the very early 1990s that America was far too bigoted a place to allow marriage equality – just as I was told in 2007 that America was far too bigoted a place to elect a black president. I believed neither proposition, perhaps because I love this country so much I knew it would eventually get there. I trusted the system. And it worked. From 1989 (when I wrote the first case for this on the cover of a national magazine) to today is less than a quarter century. Amazing, when you think of how long it took for humanity to even think about this deep wound in the human psyche. 
 
 So to those who are often tempted to write off America’s ability to perfect its union still further, to lead the world in the clarity of its moral and political discourse, and to resist the pull of fundamentalism when it conflicts with human dignity, let me just say: I believe. 
 
 Because I have seen. 
 
 (Photo: Michael Knaapen and his husband John Becker react outside the US Supreme Court in Washington DC on June 26, 2013. By Mladen Antonov/AFP/Getty.) ||||| 
 
 Photo by Mark Wilson/Getty Images American University students Sharon Burk (left) and Mollie Wagoner embrace after hearing that the Supreme Court ruled that the Defense of Marriage Act is unconstitutional on June 26, 2013, in Washington. 
 
 I never understood why Oscar winners sometimes find themselves onstage, gripping a statuette, without a list of people they need to thank. Their chances of victory were 1-in-5. Why didn’t they prepare? 
 
 Now I know exactly why those actors find themselves without a speech. They’re too scared to imagine the possibility that they might win. 
 
 When the Supreme Court’s decision on the constitutionality of the Defense of Marriage Act was released Wednesday morning, I was genuinely surprised and totally unprepared. I knew it was coming, but I hadn’t dared to hope that the court would do the right thing for families such as mine. Votes had gone the wrong way too many times in the past. Feelings had been hurt. What did straight Americans have against their gay and lesbian compatriots that they would go into a voting booth or stand on a legislature floor and choose to deny them basic civil rights? 
 
 As the decision was announced, I finally allowed myself to experience a feeling of belonging. Perhaps the world really is changing. Perhaps responses that feel like hatred and rejection are just temporary expressions of discomfort with rapid change. In the past, when people would assure me that attitudes were changing slowly but surely, I always responded by telling them, “The time for justice is always now.” ||||| Good News, Bad News 
 
 The court’s promotion of gay marriage is like a shotgun wedding: done with reluctance and without the loving embrace of someone fully committed to the sacred union. 
 
 In 1964, when the Supreme Court held that the Civil Rights Act’s bar on racial discrimination applied even to a small, family-owned barbecue restaurant in Birmingham, Alabama, the court rested its ruling on Congress’s power to regulate interstate commerce, rather than on the Constitution’s guarantee of “equal protection.” As Justice Tom Clark announced the opinion from the bench, Justice Arthur Goldberg scribbled a note to Justice William O. Douglas criticizing the court’s reluctance to base its decision on equality: “It sounds like hamburgers are more important than human rights.” 
 
 Today’s two Supreme Court decisions on marriage equality might be similarly described. To hear the reasoning of the court, it sounds like procedure is more important than people. 
 
 Like the court’s decision in the Birmingham barbecue case, today’s decisions undoubtedly advance the cause of equality for LGBT individuals. Yet they do so not because the justices are fully committed to equal citizenship for all Americans regardless of sexual orientation. Instead the court’s rulings focused largely on process—either how the law was passed or how the law came up for review in the court. And by focusing on process and procedure, the court severely limits the scope and implications of its rulings. 
 
 The court’s emphasis on process and procedures is most glaring in Hollingsworth v. Perry, the case involving California’s ban on same-sex marriage. Über-lawyers Ted Olson and David Boies, who famously went head-to-head in Bush v. Gore, asked the justices to hold that LGBT couples had a constitutional right to marry. If the justices had agreed, bans on same-sex marriage in 38 states might have been overturned. Alternatively, the court could have limited its ruling to California, on the theory that states can’t grant marriage rights one day and take them away the next. The justices declined to endorse either approach. Rather, the court held that it didn’t have the authority to rule on the merits of Olson and Boies’s challenge to California’s ban because the initiative’s backers, who were defending the law on appeal when California’s lawmakers refused to do so, lacked authority to represent the state’s interests. Because of this procedural problem, all the appeals in the Proposition 8 challenge were nullified. 
 
 Make no mistake, Perry is a victory for marriage equality. The trial court ruling by Judge Vaughn Walker that Proposition 8 is unconstitutional still stands, as does the injunction he issued requiring state officials to issue marriage licenses to same-sex couples. By its terms, it prohibited state officials from “applying or enforcing” Proposition 8. That would seem to mean that state officials can’t refuse to issue marriage licenses on the basis of sexual orientation to any gay couple. In other words, same-sex marriage would be immediately lawful throughout California. Yet, consistent with existing law on injunctions, Walker’s injunction is likely to be read much more narrowly, requiring only that officials permit the two same-sex couples who challenged Proposition 8 to wed. Federal district courts generally only have authority to issue injunctions applicable to the named parties in the suit, except in special cases (like class-action lawsuits). 
 
 The court’s decision may make California Gov. Jerry Brown the ultimate arbiter of Proposition 8’s fate. Generally, the executive branch is obligated to enforce laws, even if the governor is opposed to a law’s requirements. Indeed, California officials have continued to follow Proposition 8, declining to issue marriage licenses to same-sex couples. Yet, Brown may decide that, in light of Walker’s ruling, that the ban is no longer good law. He could point to the fact that there’s now a final ruling of a federal court that the law is unconstitutional, and there won’t be any serious political backlash in liberal California. In fact, he’s likely to be hailed as a hero. If, nonetheless, he decides to continue enforcing the ban, he would almost certainly lend his support for another ballot measure in California to overturn Proposition 8 in 2014. Marriage-equality proponents have already promised to push such a measure, which is likely to pass. 
 
 In any event, same-sex marriage is going to be permitted in California within the next 18 months, if not much sooner. This will itself be a major victory for marriage equality. California has approximately 1.1 million LGBT adults and 200,000 people already part of a same-sex couple; they would finally have the option of marriage. Today, only 18 percent of the American population resides in a jurisdiction allowing same-sex marriage. Once California turns, however, that number rises to 30 percent. Marriage equality in California will also mean that nearly 40 percent of the nation’s 650,000 same-sex couples will live in places where they can marry. Yet nothing in today’s opinion requires any other state to allow same-sex marriage. So couples in Mississippi and Alabama will have to wait for another day. 
 
 The DOMA case, United States v. Windsor, also furthers the cause of LGBT rights, but, in many ways, for the wrong reasons. Justice Anthony Kennedy’s majority opinion does discuss equality and recognizes that discrimination against LGBT people is often, like DOMA, merely a reflection of a “bare desire to harm a politically unpopular group.” Yet, again, much of Kennedy’s reasoning focuses on process. One of the main problems with DOMA, he writes, was that Congress, in a blunderbuss fashion, restricted the rights of same-sex couples to more than 1,000 federal benefits and programs that opposite-sex couples enjoy. In doing so, Congress interfered with the state’s traditional authority to regulate marriage. Regulation of marriage “is an area that has long been regarded as a virtually exclusive province of the States.” DOMA, Kennedy explains, “because of its reach and extent, departs from this history and tradition.” 
 
 This language may be celebrated today, but by emphasizing respect for tradition, the court may have sent a signal to lower courts that limiting marriage to one man and one woman remains constitutionally permissible. After all, allowing marriage only between one man and one woman is a longstanding tradition. If a central part of DOMA’s problem was its deviation from longstanding practice, then a state ban on same-sex marriage would not seem to pose the same problem. Moreover, Kennedy’s ode to states’ rights is hardly a boon to marriage-equality proponents. Mississippi and Alabama’s authority to define marriage as they see fit appears to be given constitutional protection. 
 
 There are other important limitations in Kennedy’s ruling that should give LGBT-rights supporters pause. Kennedy rejects the argument of the Obama administration that all laws discriminating against LGBT individuals should be subject to heightened judicial review—the same type of review laws discriminating on the basis of race or sex receive. Heightened scrutiny would have meant that discrimination on the basis of sexual orientation could be constitutional only in exceptional cases, where there was a demonstrably important reason for the disparate treatment and few other alternatives. Under that test, nearly every law discriminating against gays and lesbians would have been called into question, including marriage laws, adoption laws, and blood-donor rules. Yet the court’s refusal may be read by lower courts to mean that LGBT discrimination may still be constitutional, especially when it’s consistent with tradition rather than contrary to it. 
 
 Forsaking heightened scrutiny is on a par with Kennedy’s approach in past gay-rights cases. While Kennedy wrote some major pro-gay rights opinions for the court, those decisions have included caveats and qualifications that limited their impact. He’s consistently refused to say that LGBT classifications should receive heightened scrutiny. His opinion in the much-touted Lawrence v. Texas case, striking down same-sex sodomy bans, refused to say that gays and lesbians have a fundamental right to sexual privacy and made sure that gay-marriage bans weren’t called into question. Indeed, after surveying Lawrence, a federal appeals court said that nothing in Kennedy’s opinion required striking down a ban on gay adoption. Kennedy’s embrace of gay rights has always been hesitant and incremental. DOMA is no different. ||||| The Supreme Court’s ruling today on the Defense of Marriage Act is a loss for big government, not for marriage. Let’s revisit. 
 
 The year was 1996 and I was a young college frosh, Democrat, and progressive activist. Democrats campaigned on DOMA. Clinton, the new Kennedy-of-sorts, was a fervent supporter, writing prior to the bill’s signing: 
 
 I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. 
 
 Other notable supporters include current Vice-President Joe Biden, Senators Chuck Schumer, Dick Durbin, Harry Reid, and Patrick Leahy. (Here is the roll call.) 
 
 Democrats , led by Clinton, also supported Don’t Ask Don’t Tell. 
 
 The Log Cabin Republican group led the fight against both DADT and DOMA. 
 
 I wrote this on government involving itself in marriage months ago: 
 
 I’ve never understood how anyone who spent the past four-plus years lamenting the size of government could then argue for its increase by inviting it into the discussion of marriage. We complain about government in health care, we complain about government in education, we complain about government regulating soft drink size, but suddenly some of us have no problem with more government in people’s relationships with one another. Marriage is a covenant between a man, woman, and God before God on His terms. It is a religious civil liberty, not a right granted by government. It should never have been regulated by government in the first place, and government shouldn’t have an expanded reach in further regulating it now. There is no allowance constitutionally that invites our government to define the religious covenant of marriage. I’ve no issue with same sex couples entering into contractual agreements with each other or sharing benefits (the military decisions should be made by those with the credit of service day in and day out, not civilian advocacy groups). Isn’t that the goal of this conflict? If so, to me, that’s an issue separate from marriage. In suing over “marriage” itself one is demanding that God change His definition of the union between a man and a woman. If recognition of status, ease with other contractual obligations, and other issues are the issues, why the need to force people of faith to alter recognition of God’s Word on the matter? The people may bend as reeds to lawfare, but God will not. Frankly, I see no point in being on any side other than God’s on any matter, and God is more small government than any player in the scene. In suing over marriage one is demanding that others modify their beliefs to accommodate another. Do not people of faith retain their First Amendment liberty of freedom of religion? 
 
 That’s what this will now become, a debate on civil liberties. If you don’t believe me, read on in the story where I list examples of how it’s already happening. You don’t see protests for those people of faith being discriminated against for their Christian beliefs. 
 
 Big government is a symptom of apathetic people. If big government is needed to define marriage then the people who make up the church, and I say this as one of them, have not done their best to God to live and evangelize their faith. Where we fail government intercedes. 
 
 I view today’s ruling as a narrow second chance. The government has, for now, refrained from issuing a blanket statement against the institution of marriage, reverting instead to state jurisdiction. The bottom line is that today’s ruling was once again a failure of Democrats’s big government. Democrats campaigned on DOMA, championed it, Clinton signed it. The party who filibustered the Civil Rights Act will say they “evolved,” which is code for “waffle.” If after today Democrats want to finally agree with conservatives that big government is bad, I’m sure we’d accept their admission of error. ||||| Outside the Supreme Court after the DOMA and Prop 8 decisions. (Charles Dharapak/Associated Press) 
 
 The Supreme Court’s work on marriage equality is far from done. But I believe this may be remembered as the day when the nation stopped regarding gay people as second-class citizens. 
 
 Justice Anthony Kennedy’s sweeping opinion, striking down the federal Defense of Marriage Act, compels the federal government to accept that there is no difference between legally performed same-sex marriages and legally performed opposite-sex marriages. That is huge — but only goes so far. 
 
 The court left the question of allowing gay marriage to the states. This means that couples who are legally married in, say, Massachusetts or New York will be considered unmarried, and unable to be married, in Alabama or South Carolina. If they move to one of those states, they may receive the federal benefits of marriage but none of the state benefits. 
 
 Presumably, for example, such a couple could file a joint federal income tax return but would have to file individual state returns. One unintended consequence of Kennedy’s court ruling may be to create lots of new work for accountants. 
 
 Chief Justice John Roberts’s opinion in the California Proposition 8 case is even narrower, in that he basically decided not to decide — thus allowing gay marriage to resume in a state that is home to 11 percent of the U.S. population. Even the question of whether marriage rights, once granted, can be taken away was left unaddressed. 
 
 This leaves things basically they way they stood before — not after — the landmark 1967 Loving v. Virginia ruling that struck down laws against interracial marriage. At the time, 16 states had laws on the books making marriage between blacks and whites illegal. Married couples became “unmarried” when they crossed state lines. 
 
 But even if we’re far from the point where same-sex marriage is recognized as a fundamental right throughout the land, that’s clearly where we’re headed. 
 
 Kennedy’s majority opinion notes that the state of New York, by sanctioning gay marriage, conferred upon “this class of persons … a dignity and status of immense import.” DOMA, by contrast, has “the opposite purpose — too impose restrictions and disabilities.” 
 
 Kennedy writes: “DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” 
 
 The opinion is full of that kind of language. It speaks often of dignity, it lauds the “stability and predictability of basic personal relations” that marriage provides, it notes that there is an “evolving understanding of the meaning of equality.” 
 
 In a dissent, Roberts argued that “interests in uniformity and stability” justify Congress’ decision to pass DOMA. This question of uniformity will surely come up in future cases, when same-sex couples move across state lines and have their marital status summarily altered. 
 
 The court took pains to avoid even considering whether the Constitution’s guarantee of equal protection gives same-sex couples the inalienable right to marry. But when the court does eventually take up that question, it will have as precedent a decision that, while tightly constrained in its legal reasoning, is broad and forward-looking in its language. 
 
 The decision treats gay marriage, and gay people, as normal and unthreatening. It uses words that echo the Constitution’s most cherished guarantees of liberty and equality. This will, I believe, be a day long remembered.
– The Supreme Court's gay marriage rulings have pretty much everyone talking and typing. Many liberals are overjoyed, but others urge caution, while conservatives look for silver linings. Here's what people are saying: "This may be remembered as the day when the nation stopped regarding gay people as second class citizens," writes Eugene Robinson at the Washington Post, but there's still much more to be done. The Prop 8 ruling "leaves things basically the way they stood before—not after—the landmark 1967 Loving v. Virginia ruling that struck down laws against interracial marriage." Adam Winkler at the Daily Beast complains that "to hear the reasoning of the court, it sounds like procedure is more important than people." Even the comparatively bold DOMA decision leans on process and states' "traditional authority," which "may have sent a signal to lower courts that limiting marriage to one man and one woman remains constitutionally permissible." Winkler also points out that the court rejected the Obama administration's arguments that laws discriminating against LGBTQ people should be subject to more rigorous judicial review, on par with race or gender. "The court’s refusal may be read by lower courts to mean that LGBT discrimination may still be constitutional, especially when it’s consistent with tradition rather than contrary to it." "This happened the right way—from the ground up, with argument, with lawsuits, with cultural change, with individual courage," writes Andrew Sullivan at The Dish. "So to those who are often tempted to write off America's ability to perfect its union still further … let me just say: I believe." June Thomas at Slate feels like she just won an Oscar. "As the decision was announced, I finally allowed myself to experience a feeling a belonging," she writes. "Perhaps the world really is changing." Meanwhile over at the conservative blog RedState, Dana Loesch looks on the bright side, arguing that this is "a loss for big government, not for marriage." After all, power was just removed from the federal government and returned to the states. "If big government is needed to define marriage then the people who make up the church" have failed to "live and evangelize their faith." For more conservative reactions, click here.