There’s no question that today’s decision striking down the Defense of Marriage Act on equal protection grounds is sweeping and historic. There is a unique feature of the 40-year gay marriage debate that makes the question of history and historical evolution particularly important: Unlike racial segregation, to which anti-gay laws are often compared, the traditional restriction of marriage to opposite-sex couples was not designed, in and of itself, to denigrate or harm same-sex couples. No matter how angry pro-gay advocates may rightly feel toward those who oppose our equality, it seems fair, at first blush, to concede that restricting marriage to straights was not exactly a malicious or irrational act based on nothing but animus against gay people. But none of that means DOMA was constitutional. Whatever the dissenters may say, each generation should interpret the meaning of a law as it applies in that generation’s own time.
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