Gay Marriage and the Law of the Land

Those who say American politics is gridlocked aren’t looking in the right places. When the Supreme Court decides once and for all the issue of same-sex marriage–the Justices announced on Jan. 16 that they are taking up the matter–they will complete one of the most rapid and dramatic political shifts in U.S. history.

Consider: less than 20 years ago, states were free to put same-sex couples in jail for the crime of private, consensual sexual activity. No jurisdiction in the world recognized same-sex marriages–but just in case, Congress passed, and Democrat Bill Clinton signed, a law banning federal recognition of such unions. The constitution of Colorado, a swing state, had been amended to forbid any legal protections for homosexual rights.

Now there’s little doubt that by summer, same-sex-marriage rights will be the law of the land. The die was cast in 1996, when the Supreme Court struck down Colorado’s law, ruling for the first time that gay people cannot be discriminated against through the law, no matter what the majority of voters might think. In 2003, the court went further, ruling that moral teachings are not sufficient reason to deny homosexuals the freedom to form intimate relationships.

Those two concepts led directly to the 2013 opinion in which the Justices–the same nine who will decide this year’s case–struck down the Defense of Marriage Act (DOMA) signed by Clinton. The plaintiff in that case was a lesbian spouse whose marriage was recognized under New York law. The court ruled that the Constitution bars the federal government from treating opposite-sex marriages differently from same-sex marriages in states that legalize both.

Now the court will apply the same reasoning to state laws. Does the Constitution allow states to discriminate when Congress cannot? Can the 14 states that still ban same-sex unions refuse to recognize those performed in other states?

In other words, suppose that two couples who were lawfully married in, say, Utah both move to Ohio. Can officials in Ohio refuse to recognize one of the marriages–the two-husband marriage–while recognizing the union of husband and wife?

Justice Anthony Kennedy, the dominant voice in the court’s gay-rights cases for two decades, left no doubt about his thinking in his 2013 majority opinion: “No legitimate purpose” exists to justify a law “to disparage and to injure” same-sex couples. DOMA “instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

The implications of such strong language are clear. Even some of the most conservative courts of appeal have struck down state marriage bans in the wake of the 2013 ruling. Earlier this term, the Supreme Court declined to take up the issue, for the simple reason that lower-court judges were arriving at the same decision. Where there was no dispute, the high court saw no need to step in.

But last fall, a panel of the Sixth Circuit Court of Appeals–with jurisdiction over Ohio, Kentucky, Michigan and Tennessee–forced the high court’s hand. Upholding state bans in its domain, the Sixth Circuit relied on a one-sentence ruling by the Supreme Court in 1972. In that case, a Minnesota law-school student argued that he had a right to marry his boyfriend; the justices said that the Constitution had no bearing on the question.

That thin precedent won’t survive. It defies belief to think that the same Justices who joined Kennedy’s 2013 opinion, with its emphasis on the equal dignity of same-sex couples, would allow gay marriage to spread from coast to coast, then turn around and enforce state bans. Such a ruling would potentially invalidate thousands of unions.

Polls show that a majority of Americans are willing, even eager, to see the court take the final step. From impossible to inevitable, the high court and the American people have moved together, just the way politics is supposed to happen.