The Supreme Court has seized center stage in a historic social policy debate over same-sex marriage by agreeing to review the validity under the Constitution of a federal law defining marriage as a union between a man and a woman.
In an order, the court also announced that it would consider a challenge to California’s ban on gay marriage, known as Proposition 8, which voters narrowly approved in 2008.
Same-sex marriage is a hot-button issue in a country where 31 of the 50 states have passed constitutional amendments banning it while Washington, D.C., and nine states have legalized it, three of them on Election Day last month.
Yet even where it is legal, married same-sex couples do not qualify for a host of federal benefits because the 1996 Defense of Marriage Act, or DOMA, passed by Congress, only recognizes marriages between a man and a woman.
Gays and lesbians married under state laws have filed suits challenging their denial of such benefits as Social Security survivor payments and the right to file joint federal tax returns. They argue the provision, known as Section 3, violates equal protection provisions of the U.S. Constitution.
The court could follow the model of some lower courts and rule narrowly…or it could demonstrate the courage of previous courts and come down on the side of equal civil rights for all Americans, recognize a right to marriage equality.
My concerns are obvious, the same experienced by any American confronting the political theater our legal system has become. There is no shortage of bigots and fools who would apply the heart of constitutional freedoms only to a limited number of citizens. Egalitarian law applied to all citizens doesn’t occur to many who base their beliefs on superstition instead of science, privilege instead of equal opportunity.
I have more confidence in the legal flunkies of the Right who sit on the Supreme Court bench being more concerned – for once – with their image and reputation in future legal histories than with bending to the sound and fury of their class. It would be even more pleasing to see them stand up for the spirit of our constitution.