Forty-five years after it ruled that laws against interracial marriage violated the Constitution, the Supreme Court is finally poised to scrutinize the equally unjust impediments to marriage between people of the same sex. At a private conference Friday, the justices will consider several petitions relating to the issue. Of particular concern to Californians is whether the justices will decide to review a federal court ruling that declared Proposition 8, the state's ban on gay marriage, unconstitutional.
Welcome as it was, that decision by the U.S. 9th Circuit Court of Appeals was a narrow one that at this point fits only the particular circumstances of Proposition 8. A three-judge panel decided that the initiative was unconstitutionally discriminatory because gay and lesbian couples in California had, for a brief period, enjoyed the equal right to marry.
In other words, if the Supreme Court declines to review the 9th Circuit's ruling and it stands as it is, bans on same-sex marriage in other states will remain in place. So as much as we would like to see this wrenching episode end, we hope the high court will take the case and consider it in the broadest constitutional terms. It should conclude that homosexuals are indeed a "discrete and insular" group that has been harmed by a long-standing pattern of discrimination in this country, and that they are entitled to the protections of the 14th Amendment — the same amendment that ended state laws against interracial marriage. The Supreme Court should rule clearly that Proposition 8 and other bans on same-sex marriage are unconstitutional.
In addition to the case involving Proposition 8, the justices are being asked to review lower-court decisions striking down Section 3 of the federal Defense of Marriage Act signed by President Clinton in 1996. Section 3 says that for federal purposes, "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." DOMA means that even in a state that has legalized gay marriage, a same-sex spouse is ineligible for federal benefits — such as Social Security survivor payments — that are available to spouses in heterosexual marriages. Obviously, DOMA violates the equal protection of the law, and the court should so rule. But it also should make clear that same-sex couples have a right to marry even in states that haven't passed legislation to that effect.