One reason Americans have moved so rapidly toward support of same-sex marriage is their stubborn bias toward liberty. When interest groups demand something material, or when they seek to take something from other groups, the public is apt to resist. But when a group asks to live and let live, it can usually count on getting its way.
Legal scholars have long thought that if the Supreme Court upheld same-sex marriage, it would base that decision on the 14th Amendment’s guarantee of “the equal protection of the laws.” When Justice Anthony Kennedy made the case for overturning the Defense of Marriage Act, though, he relied on a different provision. DOMA, he wrote, “is a deprivation of an essential part of the liberty protected by the Fifth Amendment.”
The right to marry a person of the same sex fits perfectly within Thomas Jefferson’s conception of freedom. “It does me no injury for my neighbor to say there are twenty gods or no God,” he wrote. “It neither picks my pocket nor breaks my leg.”