Gay marriage comes before the Supreme Court

What happened

The Supreme Court signaled a cautious approach to determining the constitutionality of gay marriage this week, as it confronted one of today’s key civil-rights issues for the first time. The court heard arguments on both California’s Proposition 8, which outlawed same-sex marriage in the state in 2008, and the Defense of Marriage Act (DOMA), the 1996 federal law defining marriage as “only a legal union between one man and one woman.” Marriage-equality advocates hoped the court would toss out Prop. 8, opening the door for legalizing gay marriage in all 50 states. But in oral arguments, the court’s conservative wing showed itself reluctant to pass judgment. Justice Anthony Kennedy, seen as the swing vote on the divided court, said the court was entering “into uncharted waters,” and suggested that there was too little “sociological information” on gay marriage to rule on it. If the justices decide to dismiss the case, a lower court ruling overturning California’s ban will stand.

A majority of the justices did voice support for striking down DOMA, however—a decision that would allow married same-sex couples to receive the same federal benefits as other spouses. While conservatives on the court found little problem with the federal law, the liberal wing implied that it violated the civil rights of same-sex couples. DOMA creates a tiered system of marriage, said Justice Ruth Bader Ginsburg: “Full marriage, and then this sort of skim-milk marriage.” Kennedy also criticized the law, but for violating states’ rights. The court is expected to issue a ruling on both cases before July.

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What the editorials said

We favor a “broad ruling” striking down both Prop. 8 and DOMA, said the Los Angeles Times. That would give all same-sex couples a constitutionally protected right to marry. Gays and lesbians are seeking “not some newfangled right,” but participation in the “venerable and essential institution” of marriage. Still, the consequences of a narrower ruling “wouldn’t be catastrophic,” said Bloomberg.com. Simply dismissing the Prop. 8 case, as Kennedy seemed disposed to do, would “signal support of same-sex marriage,” while allowing public opinion to further coalesce.

Why not let the people decide? said The Wall Street Journal. It’s true that public support is growing; nine states now recognize same-sex marriages, “up from zero less than a generation ago.” The court should stand back and allow popular acceptance to grow on its own, rather than impose a “judicial diktat” on the 31 states whose voters have endorsed traditional marriage. Let change come as and when the electorate chooses to accept “new values and norms.”

What the columnists said

While the court labors over its decision, “the country has moved on,” said Maureen Dowd in The New York Times. Some 58 percent of Americans now support gay marriage, and 81 percent of those under 30 do. Yet “fuddy-duddies” on the court like Kennedy seem to want to duck the issue. Fine, but America has already made its mind up, and “if this court doesn’t reject bigotry, history will reject the court.”

Gay marriage acceptance still isn’t an “overwhelming juggernaut,” said Jonathan V. Last in WeeklyStandard.com. Even in “ultraliberal” Washington state, only a narrow majority voted in favor of gay marriage. So thank goodness for Justice Antonin Scalia, said Daniel Foster in NationalReview.com, for noting this week that the Constitution doesn’t mention homosexuality or marriage. In the end, it will be “some version of this worry,” not Kennedy’s dithering, that will stop the court from ruling rashly in favor of gay marriage for all.

Let’s not forget that reading the tea leaves of oral arguments is “risky business,” said Michael Crowley in Time.com. About this time last year, the Affordable Care Act came before the justices. Court watchers eagerly informed us that the Obama administration’s lawyers had foundered in court and said the justices were “poised to strike it down.” We all remember how that turned out. So rather than parsing Kennedy’s “tantalizingly inconclusive” words for a possible outcome, maybe we should just sit back and watch “one of the great historic civil-rights debates of our lifetimes.”