Supreme progress on marriage

April 9th, 2013



On March 26, 2003, a lawyer stood in front of the nine Justices on the Supreme Court and argued that states should not be allowed to criminally prosecute gay and lesbian people for engaging in sexual activity. At the time, 14 states still had laws on the books that made “homosexual conduct” a crime. Flash forward exactly ten years later, and the Court was considering whether Proposition 8, (barring gay couples from marrying in California) violates the Equal Protection clause of the Constitution. What a difference a decade makes.

To say our country has undergone a rapid transformation on the issue of marriage for gay couples is an understatement. The speed and breadth of this evolution have shocked even the most optimistic advocates. Just in the past two weeks, a cascade of Senators from purple and red states have added their voices to the chorus of marriage supporters, including Rockefeller, Kaine, Tester, McCaskill, Portman, Warner, and Hagan at last count. And this week’s Supreme Court arguments were another landmark moment for the cause.

Because this progress has come at such an astonishing clip, it is understandable that many had hoped the Supreme Court would take this opportunity to issue a broad decision that acknowledged a Constitutional right for gay couples to marry nationwide. After this week’s oral arguments, that outcome seems unlikely. But that reality should not be seen as a setback — rather, it is an opportunity to continue our nation’s swift journey toward full acceptance of gay and lesbian couples.

If the Court does decline to recognize a sweeping right to marry this June, its decisions will still likely have the effect of striking down the Defense of Marriage Act and making Proposition 8 unenforceable in the state of California. Whether or not the Justices reach the merits of the Proposition 8 case (they may decide it was not properly before them), that ban on marriage for gay couples in California will likely fall, nearly doubling the number of Americans who live in a state where gay couples can wed. Either by leaving the district or appellate court decisions in place or by striking Prop 8 down directly on the substance, the Court would be moving us a huge step forward.

And if the Defense of Marriage Act (DOMA) falls, all of those committed couples who currently have “skim milk marriages” (in the words of Justice Ginsburg) that are ignored by the federal government under the law will suddenly be able to enjoy the full protections that marriage provides. That means my wife and I, who the federal government currently treats as strangers, will be better equipped to take care of each other in countless ways that directly affect our everyday life, including health care, taxes, social security, and for many other couples, immigration and military spousal protections. It also means that for states looking to pass marriage for gay couples in the near term, including Illinois, Delaware, Rhode Island, and Minnesota, the federal government will respect their determination of who is legally wed, rather than second guessing and nullifying it.

Beyond that, there are myriad ways the Obama administration could apply a decision striking down DOMA to expand protections for gay couples whose states don’t yet allow them to marry. These could include ensuring that the federal government wouldn’t “unmarry” a couple for federal purposes if they move out of a marriage state into one that doesn’t respect their union. It could also mean honoring marriages for federal purposes based on whether they were legal in the place they were celebrated — not necessarily the place the couple resides.

These judicial outcomes would hardly be half a loaf — they would be incredible steps forward that would have real and lasting impacts on the lives of gay couples across the country. And in contrast to a broad decision sanctioning marriage nationwide, they would also allow Americans to continue to acclimate to the idea of gay couples marrying — a process that has occurred unbelievably quickly thus far and shows no sign of slowing in the coming months and years.

It might be messier for a while, but this path would leave room for the conversation our country is having around this issue to continue to play out. Undoubtedly, more states and public figures would add themselves to the pro-marriage roster, and they would be able to do so of their own volition at their own pace. In the end, the Supreme Court may have to take up another case in the next few years to bring the last handful of states along, but given the rate at which we’re moving — having gone from criminals to legally married in just a decade—there’s no doubt that at that point, we’ll be ready.

This piece was originally published in The Hill