Gay marriage: It’s up to the Supremes

Is gay marriage about to become legal in every state? It’s now possible, thanks to last week’s federal appeals court ruling that the Defense of Marriage Act (DOMA) is unconstitutional, said Greg Sargent in WashingtonPost.com. In his ruling, conservative Judge Dennis Jacobs of New York’s 2nd Circuit Court of Appeals—who was appointed by President George H.W. Bush—declared for the first time that homosexuals have been discriminated against as a “quasi-suspect class,” making it necessary to subject any law concerning them to “heightened scrutiny.” That’s the same legal language used to protect women and racial minorities from discriminatory laws. “This is a key legal breakthrough,” and could serve as a basis for the U.S. Supreme Court to provide federal recognition of all state-sanctioned, same-sex marriages. It’s even possible that in this upcoming term, the high court will rule that Americans “have a right to same-sex marriage in every state.”

The new ruling might actually be “too favorable” to gay marriage, said the Los Angeles Times in an editorial. In all likelihood, the fate of DOMA will be decided by Justice Anthony Kennedy, the “swing vote” on the divided court. Jacobs’s unprecedented finding that gays are a politically powerless “suspect class” may be a step too far for the cautious jurist. He, and the court, might simply invalidate DOMA on federalist grounds—for interfering unduly in state marriage laws—leaving dozens of state bans on gay marriage in place. Back in the 1970s, the court ruled that there’s no constitutional right to gay marriage, said Bill Duncan in NationalReview.com. And as the dissenting 2nd Circuit judge just said, a momentous change in the definition of marriage “is not for the courts to decide.” It should be settled “through the democratic process.”

The Supreme Court may well reject Jacobs’s reasoning, said Garrett Epps in TheAtlantic.com, but not his conclusion. It’s now clear that opponents of gay marriage have no legal arguments for what is essentially a religious position. As for Justice Kennedy, said Michael Klarman in The New York Times, his “opinions often suggest that he wants to be on the right side of history.” With polls showing more than 50 percent of Americans now in favor of gay marriage, Kennedy may well join the four liberals in a historic opinion that gives gay rights “its Brown v. Board of Education.”

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