California’s Proposition 8
rewrote the state’s Constitution so that “only marriage between a man and a woman is valid or recognized in California.” The 1996 Defense of Marriage Act, for purposes of any federal law,
defined the word marriage to mean “only a legal union between one man and one woman.”
The Supreme Court will hear arguments on challenges to Proposition 8 on
Tuesday and Defense of Marriage on
Wednesday. In both cases, the court should rule that the Constitution prohibits the federal government and every state from defining the
fundamental right of marriage so narrowly and fully protects the liberty of same-sex couples.
When Proposition 8 was on the California ballot in 2008, the
official pamphlet explaining the initiative said that it did not “take away any rights or benefits of gay or lesbian domestic partnerships,” which have the “ ‘same rights, protections, and benefits’ as married spouses.”
As the California Supreme Court said about legal attacks on same-sex marriage, the point of denying gay marriages was to say officially that these relationships were not of “comparable stature or equal dignity” to opposite-sex marriages. The intent was to stigmatize them, enshrine discrimination in law and encourage discrimination against gay men, lesbians and same-sex couples. The federal Defense of Marriage Act does the same, with the same effects. And in depriving same-sex couples and their children of federal recognition and benefits, it fails to meet any test under the Constitution.
In the Proposition 8 case, it is widely agreed that the Supreme Court has
four options, if it does not, unconscionably, uphold the initiative. It could allow same-sex marriage only in California or it could dismiss the case on grounds that the initiative’s sponsors had no standing to bring the appeal (by not ruling on the merits, the result would very likely be to allow same-sex couples to marry in California).
The court could also decide that California and the seven other states that allow civil unions equivalent to marriage cannot deny same-sex couples the status of marriage. But accepting the “eight state solution” would be a half-step and would have to be revisited in the near future.
The soundest approach is to recognize same-sex marriage broadly as a matter of equality under the Constitution — and therefore compel all states as well as the federal government to recognize this right. In the 2003 case
Lawrence v. Texas, which struck down a Texas sodomy law as violating constitutionally protected liberty, Justice Anthony Kennedy, writing for the court, said, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Gay, lesbian, bisexual and transgender people have been seeking the freedom to live openly, to be treated equally and to marry as they choose. They have helped bring about a major shift in public opinion in the past decade in favor of same-sex marriage; they are now joined by
leading Republicans and many of America’s
most important companies in making the powerful case for marriage equality before the court.
Support now for same-sex marriage — more than half in favor, about one-third against — is roughly the public divide on the question of public school desegregation
in 1954 when the Supreme Court outlawed segregated schools in
Brown v. Board of Education. But the court’s call then for states to end racial discrimination in public schools “with all deliberate speed” was a big error. It gave states far too much latitude to move slowly and gave them an excuse for resistance, which delayed desegregation in many school districts for many years.
The court should avoid that kind of error in the same-sex-marriage cases. It should broadly declare that under the Constitution the right to marry applies equally to all couples, period, and that this principle applies to the federal government and every state.
