Editorial: A pivotal week for gay marriage, and for the Supreme Court
Two cases before the U.S. Supreme Court this week regarding gay marriage represent one of those delicious situations likely to compel Americans — including those nine on the court — to confront their own competing beliefs and biases, and to choose.
Indeed, it’s darn hard to champion states’ rights as defined by the 10th Amendment, a favorite of many conservatives, while simultaneously defending the constitutionality of the Defense of Marriage Act (DOMA), the federal law passed in 1996 — also embraced by many social conservatives — that assigned a national definition to marriage as a legal union between one man and one woman. The Supreme Court will hear the arguments for and against DOMA, obviously well aware of the precedent already established by 1948’s Sherrer v. Sherrer: “Under the Constitution, the regulation and control of marital and family relationships are reserved to the states.”
Given that — and the makeup of a Supreme Court that has four solid liberals and three emphatic and two relative conservatives who have been consistent in their leanings toward states’ rights — and no one should be surprised if DOMA is on borrowed time. Then again, this court has been known to surprise. (See: “ObamaCare.”)
Meanwhile, the problem for many liberals who want DOMA overturned is that if they prevail and the 10th Amendment is the majority’s justification, it may spell defeat for their other cause, which is repealing California’s Proposition 8 banning gay marriage in that state. Prop 8 passed at the ballot box in 2008, so not only is it a state law but it’s one adopted in the most democratic of ways. Civil rights in this country may not be subject to popularity contests, but reversing an election — i.e., the will of the people — is no small thing, either.
Complicating matters further is a 14th Amendment which mandates that “no State shall ... deny to any person within its jurisdiction the equal protection of the laws.” That’s where opponents of Prop 8 are pinning their hopes. Where marriage is concerned, arguably same-sex couples are being denied the equal protection of the laws not only in California but in the 38 states, including Illinois, where that institution is not available to them. To say the decision here has far-reaching implications is an understatement.
Ralph Waldo Emerson said that “a foolish consistency is the hobgoblin of little minds.” The big brains making the call in these two cases may have a very hard time remaining consistent to their constituencies and to their personal histories.
It may be telling that two otherwise ideological opposites, attorneys Theodore Olson and David Boies — who squared off in Bush v. Gore before the Supreme Court in 2000 — have found enough common ground in this instance to team up in fighting the Prop 8 ban on gay marriage. Telling because in some ways, this issue — like abortion — can confound those who like to draw the ideological or partisan boundary lines. One can certainly pose the argument, as Olson apparently is, that laws banning same-sex marriage are an example of big government imposing itself in a personal matter where it doesn’t belong, wholly inconsistent with conservative values. Yet advocacy for gay rights is far more often linked with liberal causes. This is one issue that may defy the labels. Apparently not all conservatives are built the same, or liberals either.
In any case, this decision is both a big deal in the present and one likely to be rendered less so with the passage of time.
As civil rights matters go, it may ultimately join the ranks of Loving v. Virginia (1967), Brown v. Board of Education (1954) and Plessy v. Ferguson (1896) and ultimately help define this court, for better or worse. Lives and pocketbooks will be impacted, as this has tax and benefit — health care, pension — implications for people, for employers, for governments.
And yet if it doesn’t happen today, it seems all but inevitable tomorrow, as there has been a sea change in attitudes on this subject in less than a decade. If polling is to be believed, some 58 percent of Americans now say they have no objection to gay marriage, and that percentage is much higher — 81 percent — among those under 30, the decision-makers of the future. Many a politician who was once opposed or at least cautious on the subject has had a change of heart.
In the here and now, well, suffice it to say the U.S. Constitution can be just so darn inconvenient for those who don’t want to be bothered by the principles contained therein mixing with the prejudices they bring to the table. In this page’s experience, a not-uncommon malady of left and right alike is that both camps love their Constitution when it suits their agenda, and ... well, not so much when it doesn’t.
Alas, few among us get to have it both ways. And so we may soon discover with these most compelling of court cases.
Journal Star of Peoria, Ill.