"Providing special recognition to one class of individuals does not demean others who are not similarly situated," writes Washington lawyer Charles Cooper in his brief urging the court to uphold Prop. 8. "It is simply not stigmatizing for the law to treat different things differently, or to call different things by different names."
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The most basic question at the heart of the debate over same-sex marriage is whether the US Constitution protects a fundamental right to marry regardless of sexual orientation.
Gay marriage proponents say it clearly does. Supporters of traditional marriage counter that the Supreme Court has never recognized such a right. They cite a 40-year-old precedent, Baker v. Nelson, that upheld a Minnesota law restricting marriage to one man and one woman.
But that's not the precise issue before the court. The justices have agreed to examine whether same-sex couples are entitled – under the Constitution's equal protection provisions – to be treated equally when it comes to marriage and the benefits of marriage.
That's where Scalia's prediction in the 2003 case may prove prophetic, and perhaps decisive. The Texas statute invalidated in 2003 had been justified by state lawmakers as a reflection of society's shared view that homosexual conduct was immoral. Kennedy's opinion rejected the use of sexual morality as a justification for criminalizing a consenting adult's private intimate conduct.
But the court didn't stop there. Kennedy went on to identify a constitutionally protected zone of personal liberty beyond the reach of the government involving the most intimate and private aspects of human relationships.
"Our laws and traditions afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," he wrote.
Kennedy added: "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."