Last week, the Supreme Court heard two cases on same-sex marriage – the biggest civil rights dispute the court has taken on in decades.
In addition to the intense news coverage of the issue, a visible number of social media users changed their avatars to red equal signs in support of same-sex marriage. With public opinion shifting rapidly in the last decade in favor of allowing same-sex couples to marry, the Supreme Court is in a both sensitive and powerful position.
One case concerns the right to same-sex marriage itself and focuses on California’s Proposition 8. The second case centers on the Defense of Marriage Act and involves the federal benefits available to legally married gay couples.
In both cases, the main question is whether the law violates the constitutional right to equal protection. Because marriage is an inherently state issue, the court will also grapple with the procedural question of whether it has the right to resolve the two cases at all.
The court is expected to reach a consensus at the end of June. There are a number of possible rulings. There is a very small chance that the court will declare gay marriage to be a constitutional right across the country. A more likely possibility is that the court could say that the states can’t deny the label of “marriage” while letting gay couples form civil unions with all the legal rights and responsibilities of heterosexual couples, which will apply to select states. The court could also avoid the question of gay marriage completely, which would only prolong the inevitable.
The constitutional validation of same-sex marriage is unavoidable. Gay rights have enjoyed tremendous progress over the past decade – from the fall of “Don’t Ask, Don’t Tell” through joint military, presidential and congressional opposition, to full same-sex marriage rights in a number of states. Both the battles in court and in daily life have pointed to a cultural shift that is increasingly supportive of gay rights. The stage has been set for same-sex marriage to be legalized by law – it is only a matter of time.
Many previous Supreme Court cases support the argument for gay marriage. Meyer v. Nebraska, Pierce v. Society of Sisters and Skinner v. Oklahoma establish that the fundamental right to marry is protected by the Fourteenth amendment. In Griswold v. Connecticut, the court linked the negative rights of individuals not to be interfered with by the state to the sacred institution of marriage. In doing so, the court established that the state’s duty is to respect the privacy of marriage. The cases of Loving v. Virginia, Zablocki v. Redhail and Turner v. Safely also established a positive element on the fundamental right to marry. Finally, Lawrence v. Texas showed that many of the above cases can apply to same-sex relationships. The case recognized the right to dignity and equal respect for all couples involved in intimate relationships, regardless of homosexuality. Judge O’Connor also alluded to the applicability of the Equal Protection Clause to extend to the rights of homosexuals.
In addition to the legal backings, the arguments against same-sex marriage are becoming weaker and are ultimately unpersuasive. Equal protection of the laws and the Constitution’s protection of fundamental interests is simply not satisfied by relegating same-sex couples’ “marriage” to a second-class status (“civil union”).
Arguments against same-sex marriage that focus on it harming the “institution of marriage” consist of nothing more than expressions of moral disapproval and devaluation of same-sex couples. Claims that gay couples aren’t suited to raise children also have no scientific backing.
Arguments concerning religious freedom fail because the government’s decision pertaining to civil marriage does not impose obligations for religious individuals or institutions to recognize for their own purposes the definition of marriage adopted for civil purposes by the state.
The deliberation over same-sex marriage consists of two debates. The first is a normative one: whether same-sex couples are morally equal to heterosexual couples. The second is an administrative debate – what relationships between persons ought to be given legal recognition and should homosexual couples be treated equally in the eyes of the law.
To both questions I would have to say yes.
The path of gay rights has been a difficult one – with many setbacks along the way and a “course to constitutional understanding forged by extraordinary personal, political and cultural struggle” (Tribe). Nonetheless, the idea of marriage equality is not a difficult concept to grasp – in fact, it is a deceptively simple issue.
If the Constitution promises liberty, equality and dignity for all Americans, then why are same-sex couples’ intimate lives degraded by laws that set their love and sense of personhood apart as little more than second-class?