THE BLOG
04/01/2013 10:24 am ET Updated Jun 01, 2013

When Morality Left the Gay Marriage Debate

The national headlines last week were dominated by the two days of oral arguments in the Supreme Court dedicated to the constitutional status of gay marriage. How the Court will decide these cases is difficult to predict. But it is not too soon to draw another conclusion: the language that the Court used to talk about gay marriage this past week lacked the polarizing moral denunciations of homosexuality of the past. The language the Court uses to debate national issues matters -- it can both frame public discussions and signal what the Court might be doing now and into the future. The change in the language of gay rights in the Court, therefore, was a major step forward regardless of how the Court decides these two cases.

When the Court announced in December that it was going to hear these cases, many were nervous because they feared that the Court would rule against gay marriage. But there was also plenty of reason to fear that the discussion before the Court would feature the polarizing language of morality that had featured in past Court cases surrounding gay marriage. This fear was amplified when, only three days after the Court decided to hear these cases in December, Justice Antonin Scalia responded to a student question at Princeton University by remarking that society might have legitimate "moral feelings" against homosexuality.

The last two times that the Court decided cases about gay rights, the discussions at the Court featured this kind of moral language -- and moral condemnations. In 1996, in Romer v. Evans, the Supreme Court invalidated Colorado's Amendment 2, which had prohibited Colorado state law from creating any civil rights protections for gay citizens. But even a win for gay rights in Romer was full of public language skeptical of the morality of homosexuality.

In its brief before the Court, the State of Colorado justified Amendment 2 as reflecting a judgment that gays are "less deserving" of the limited resources available under state law than other groups. C-SPAN recently broadcast the oral arguments in that case, and the oral argument is full of counsel on both sides having trouble even speaking the word "homosexuality." Justice Scalia's dissent from the Court's decision striking down Amendment 2 talked about Colorado's legitimate interest in the preservation of "traditional sexual mores" and Colorado's "moral disapproval of homosexual conduct."

A few months after Romer -- and citing Romer as part of the reason for its actions -- Congress passed the Defense of Marriage Act (DOMA). As Justice Elena Kagan pointed out on Wednesday, the Report prepared by the House of Representatives Judiciary Committee justifying DOMA stated that in enacting DOMA "Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality."

Seven years later, in Lawrence v. Texas, the Supreme Court invalidated a Texas statute criminalizing same-sex sodomy. It was another doctrinal win for gay rights, but another public condemnation of the morality of gay rights. In its brief, and in oral arguments, the State of Texas justified criminalizing same-sex sodomy as part of its "promotion of morality."

To be sure, the spectacle outside of the Court last week still featured demonstrators condemning homosexuality on moral grounds. Inside of the Court, though, things were different. On Tuesday, Charles Cooper appeared before the Court to defend the constitutionality of California's Proposition 8 banning gay marriage. Cooper argued that Proposition 8 was not based simply on "anti-gay malice." His argument instead relied substantially on the language of empirical uncertainty rather than moral condemnation. Cooper argued that "it is impossible for anyone to foresee the future accurately enough" to know the empirical consequences of legalizing gay marriage.

Justice Scalia talked about gay marriage differently as well. One month ago he talked about the Voting Rights Act during oral arguments as a "racial entitlement." On Tuesday, by contrast, he asked whether there was a "scientific answer" to questions posed by "sociologist[s]" about the differences in families headed by same-sex couples. Justice Samuel Alito remarked "there isn't a lot of data" about these families but that gay marriage "may turn out to be a good thing." During Wednesday's oral argument in the DOMA case, when Kagan read the statement from the House Report about morally condemning gay marriage, former Bush Administration Solicitor General Paul Clement stated that the defenders of DOMA in this case have "never invoked" those morality arguments.

If anything, the most morally infused language from the week was the language supportive of gay marriage. On Tuesday, Justice Anthony Kennedy wondered about "the voice of those children" with gay parents. On Wednesday, Justice Ruth Bader Ginsburg wondered whether it was constitutional to have "two kinds of marriage" with only one being "full marriage."

It is still true that people's support for or opposition to gay marriage is largely based on their moral worldview. But the public language we use to defend our positions is just as important as our ultimate policy positions. That is because language can both shape policy and serve as a lagging indicator of policy. The way we frame issues in our public debate can influence policy preferences. Since last week featured less moral condemnation of homosexuality in the Court, then perhaps the general public discussion of homosexuality will feature less moral commendation. This could lead to the decrease of morally negative views of gay rights, as has already been happening. Without moral discomfort with gay rights, policy support for gay rights will increase.

Language not only can change behavior but can also serve as a lagging indicator of behavioral changes that are on the horizon. If you cannot give reasons for a policy position in public, it is often a sign that you are uncomfortable with these reasons--in part because of your own conflicted feelings, and in part because you know people might really dislike your reasons and you don't want to disagree with your audience. It is often just a matter of time, then, before private preferences catch up to conflicting public justifications.

We will all anxiously await the Court's decision in these two cases. The decisions in these cases matter, but a major victory has already been won in how the Court talked about these issues last week. Language matters, and the language of last week in the Court was not as ugly as many feared it would be.

David Fontana is Associate Professor of Law at George Washington University Law School

This story appears in Issue 43 of our weekly iPad magazine, Huffington, in the iTunes App store, available Friday, April 5.