The U.S. Supreme Court’s decision last week to hear two cases involving same-sex marriage has advocates and opponents cheering. Both see a good chance that the court will rule in their favor, making a huge if not definitive statement on whether the Constitution protects the right to such unions.
It’s not clear to us what the high court will do, but it’s crystal clear what justices should do. This court has an opportunity to be on the right side of history and the law when it acts next year. That will happen only if the justices overturn the misguided and discriminatory federal Defense of Marriage Act and reject, as lower courts have, a California ballot initiative banning same-sex marriage.
As with many cases these days before the high court, the decisions – especially if the court rules broadly – are expected to be close votes with liberal-leaning justices on one side and conservative-leaning justices on the other. The swing vote is expected to be Justice Anthony Kennedy.
That could give same-sex marriage advocates hope. Kennedy authored two of the most important decisions protecting the rights of gays and lesbians – Lawrence v. Texas and Romer v. Evans. In the former, he wrote that a Texas sodomy law violated the Constitution’s due process clause. In the latter, he wrote that a law in Colorado singled out gays and lesbians for discrimination and put them at a disadvantage.
Some experts aren’t so sure of Kennedy’s leanings. But they feel the court is likely to issue narrow rulings.
In the California case, the justices may follow the appeals court decision that said Proposition 8 was unconstitutional because voters took away a right – the right to marry already granted by the state – from gays and lesbians. They would not decide whether the Constitution established such a right. They would also restrict the ruling to California.
In DOMA, the section being challenged denies federal benefits to lawfully married same-sex couples. If the court decided against DOMA, it could apply its ruling strictly to those states which allow same-sex marriages and/or federal benefits.
We hope justices will heed the lessons of the lagging high court action on interracial marriage. It would take the U.S. Supreme Court two decades after the California Supreme Court struck down a law against interracial marriages to finally stand on the side of justice and reject such laws nationwide in a 1967 ruling.
Experts say a broad ruling could upend N.C. voters’ approval last May of an ill-advised state constitutional amendment banning same-sex marriage and civil unions. The amendment may jeopardize local same-sex benefits. Republican State House Speaker Thom Tillis voted for the amendment but predicted the vote will be reversed within 20 years. “It’s a generational issue,” he said.
It’s actually a fairness issue. Even some religious groups are coming to that view: A recent Pew Center Forum found a majority of mainline Protestants and Roman Catholics now favor legalizing same-sex marriage.
Public opinion among many groups has quickly changed. A majority of Americans now say they support same-sex marriage. Last month voters in Maine, Maryland and Washington became the first to approve same-sex marriage at the ballot box. Now nine states and the District of Columbia allow such unions.
This country’s foundations rest on the ideals of equality and fairness. The high court justices have an opportunity to ensure America lives up to those ideals.