National sentiment for protecting the rights of gays and lesbians to marry perople of the same sex has moved rapidly in recent years toward support for granting equal rights under the U.S. Constitution for same-sex marriage. And rightly so.
Other civil rights have steadily advanced under the constitutional umbrella over generations. Consider them: Citizenship for slave-era African-Americans who had been in bondage here since birth; civil and voting rights for minorities and women; the right to interracial marriage; freedom from discrimination on the basis of age, gender, religion, disabilities, and sexual orientation; and, most recently, the right of gays to serve openly in the nation's military. Now, Americans increasingly have come to agree that same-sex couples should have the same marriage rights as heterosexual couples are afforded under the law.
Two cases accepted last week for hearing by the U.S. Supreme Court could well bring an affirmative decision in favor of a universal right in the United States for same-sex marriage. There's no guarantee that will happen, of course, but it should as a simple matter of justice. The facts of the cases now to be heard by the high court, and the lower court rulings that put them on course for a Supreme Court hearing, clearly suggest that the change in national attitude toward basic fairness for individuals who ardently wish to marry each other will at last be respected.
One case arises from California, where voters managed to pass a referendum in 2008 that effectively reversed a state Supreme Court ruling which had previously upheld the constitutional right to same-sex marriage. In contests over the referendum, federal court rulings at the district and appeals level upheld the state Supreme Court's ruling on the supremacy of a federal constitutional right to same-sex marriage. The courts' reasoning invoked the 10th Amendment provision that federal rights contained in the U.S. Constitution trumped states' rights to evade the Constitution.
The U.S. Supreme Court has several options on that case, but briefs in the case effectively recite Justice Anthony Kennedy's support for equal rights under the U.S. Constitution in a ruling that overturned a Colorado state constitutional amendment that sought to ban protections for same-sex marriage. If he applies his own former reasoning to the current cases, it's fair to assume that at least a 5-4 majority would rule in favor of a federal constitutional right to same-sex marriage.
The second case involves the Defense of Marriage Act passed by the Congress in 1996. It contests a DOMA provision in Section 3 that defines marriage as a union only between a man and a woman, and directly so with regard to benefits for spouses under more than 1,000 federal laws and programs. The plaintiff in the case is Edith Windsor, who appealed a decision based on the DOMA provision that excluded her as the legal heir of her same-sex partner, Thea Clara Spyer, whom she had wed in Canada in 2007. Under the DOMA law exempting lawfully married same-sex couples, the IRS had denied her spousal rights to the property she inherited under Spyer's will, forcing her to pay about $360,000 that as a spouse she otherwise would not have owed to the Treasury.
The U.S. Court of Appeals in the 2nd Circuit struck down the DOMA law in October for violating Windsor's equal rights under the 14th Amendment, which guarantees both substantive and procedural rights for all citizens.
Given these cases and the high court's willingness to grant a hearing, there's good reason to believe the social barrier against the rights of gays to marry will at last be dissolved. That would not mean that churches couldn't choose to exempt same-sex marriage in their religious practices, but it would bring an end to the lower status and lesser legal rights to marriage that now widely disfavor same-sex marriages under the law. In the interest of equal treatment and equal rights for all Americans under the Constitution, it's time to achieve that milestone.