For all the rightful attention being given to the civil rights cases the Supreme Court is hearing this week, there is a sense of inevitability surrounding the issue in front of the justices. While the Court contemplates the constitutionality of banning gays and lesbians from getting married, America is rapidly making up its mind on the topic. The justices, essentially, are deciding how quickly or slowly to put a ring on it.
On Tuesday, the Court heard arguments about Proposition 8, a 2008 California initiative that banned same-sex marriage there. Today, the Court will consider the Defense of Marriage Act, the 1996 law that bars federal recognition of gay marriages, even in states where homosexuals are allowed to wed.
We believe the justices should strike down both measures and rule that the Constitution forbids the federal government and states from defining marriage in a way that denies gays the liberties others receive. Such a ruling not only has legal basis, but moral urgency, as it would allow gays in all states the benefits, joys and burdens that accompany a marriage vow.
That, however, is an unlikely outcome – yet. Same sex marriage is still illegal in four-fifths of the states, and the justices are thought to be reluctant to get too far ahead of society, as the Court has done in the past. Justice Ruth Bader Ginsburg, a staunch supporter of abortion rights, has been critical of the Court’s ruling on Roe v. Wade a half-century ago because she felt states similarly had been moving in that direction already. The ruling, she and others believe, created a backlash that seeded an anti-abortion movement that remains powerful today.
On Tuesday, several justices expressed hesitation about taking on the gay marriage cases – and the issue. “You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?” said Justice Samuel Alito. Asked Justice Sonia Sotomayor: “Why is taking a case now the answer?”
Of course, the justices could move in the opposite direction by blocking the march toward same-sex marriage and upholding Proposition 8 and DOMA. But the Court seems equally unlikely to place itself on the back end of progress by encouraging discrimination against gay men and lesbians, as both measures do.
No matter what it decides, however, the Court isn’t stopping this march down the aisle. Support for same-sex marriage continues to grow across the country. More than 70 percent of people under 32 support it, according to the Pew Research Center, and more than 77 percent of all Americans know a gay or lesbian – up from 42 percent just a decade ago. That’s why, after 32 consecutive state elections saw voters reject same-sex marriage, four states embraced it last November.
The justices shouldn’t stand in the way. At the least, they should reject DOMA’s ability to deny benefits to same-sex couples even in states that allow same-sex marriage, and they should let stand the appeals court ruling striking down Proposition 8. Doing so won’t be the endorsement of equality we want, but it would acknowledge that we’ll eventually, if slowly, marry what’s legal with what’s right.
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