LAST THURSDAY, people started spending nights in the ticket line outside the Supreme Court, and we can’t blame them.
Over the next two days, the justices will consider two of the weightiest civil rights cases in years, both about the continuing struggle of gay men and lesbians to obtain equal recognition under the law. On Tuesday, the court will consider the constitutionality of Proposition 8, a California initiative that banned same-sex marriage in the state. On Wednesday, the justices will turn to the Defense of Marriage Act (DOMA), a law enacted in 1996 that bars the federal government from offering benefits to same-sex couples, even if they were legally married in their home state.
The justices have many options as they consider how to rule. But more important than the particulars of their eventual holdings is the general direction they choose to take: They must move the country forward, not back.
It is possible but unlikely that the court will hand down ringing decisions proclaiming marriage and all its benefits to be a constitutional guarantee, available to same-sex couples in every state. We believe in this outcome as a matter of moral and legal principle, and we expect it will prevail, eventually. But we also expect it will take more time for courts — and society at large — to embrace it fully.
It is also possible that the justices will uphold Proposition 8, DOMA’s noxious provisions or both. They must not choose this direction. Although many Americans’ attitudes on these matters are far from simple — we would hardly accuse President Obama of rank bigotry for opposing same-sex marriage only a couple of years ago — denying gay men and lesbians the right to marry is unjustifiable discrimination, and denying federal benefits to duly married couples is even more obviously repugnant to the notion of equal protection.
The arguments of those defending discrimination against gay couples are beyond far-fetched. Proposition 8’s advocates, for example, contend that restricting marriage to heterosexual couples must be rational because for thousands of years people widely agreed that the institution involved only the union of a man and a woman. That reasoning stinks of the faulty logic used to justify the persistence of all sorts of discrimination. They also argue that marriage’s purpose is to ensure that children are born into stable families; therefore, California should be allowed to limit marriage to only those capable of biological procreation. That is a narrow and insulting view of marriage. Would it then be constitutional to deny sterile heterosexual couples the right to marry? How about older couples? Moreover, lesbians can bear children and gay men can adopt. Why wouldn’t society want their parents to be wed, too?
A much more reasonable outcome than that would have the court point forward cautiously. Neither Proposition 8 nor DOMA’s worst provisions should survive the court’s review. But the justices can be expected to stop short of ruling so broadly that they would require every state to recognize same-sex marriage, when four-fifths of the states currently do not.