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The Telegram
  • Editorial: On road to inevitability, gay marriage makes Supreme Court stop

  • It's only a matter of time, no matter what the U.S. Supreme Court has to say on the subject of gay marriage. The high court, in agreeing to hear two cases challenging statutes banning or punishing same-sex marriage at the state and federal levels, can hasten that day when it's the law of the land, or postpone it, but from this vantage it's inevitable.

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  • It's only a matter of time, no matter what the U.S. Supreme Court has to say on the subject of gay marriage. The high court, in agreeing to hear two cases challenging statutes banning or punishing same-sex marriage at the state and federal levels, can hasten that day when it's the law of the land, or postpone it, but from this vantage it's inevitable.
    As is often the case, it's all about the math. In fact attitudes toward homosexuality in this country have shifted dramatically in the last few years, with a majority of Americans in recent polls saying they have no particular objection. In November voters in three states - Maine, Maryland and Washington - embraced same-sex marriage, doing for the first time at the ballot box what six other states had accomplished legislatively or judicially. Where there are differences of opinion, they tend to be generational as much as anything, with younger Americans not nearly as squeamish on the issue as their parents and grandparents. The former are going to be around longer, and they are going to carry the day.
    In the meantime, the Supreme Court will hear a pair of cases, one a constitutional challenge, originating in New York, to the 1995 Defense of Marriage Act (DOMA), which will determine whether Uncle Sam can continue to deny benefits - in health care, under the tax code, etc. - to gay couples in states that legally recognize their unions; the other brought in defiance of California's Proposition 8 ban on same-sex marriage.
    Of the two, DOMA is most vulnerable, as it's a pretty clearcut violation of the 14th Amendment's equal protection clause. Beyond that it goes to the heart of state's rights as guaranteed under the 10th Amendment. Marriage specifically has never been the province of the federal government and is not addressed in the Constitution. Federalizing the concept and definition of marriage was the fatal flaw in DOMA from the get-go. Pragmatically speaking, overturning DOMA would also seem to have at least five likely votes between the four-member liberal bloc of the court and swing vote Anthony Kennedy, who has shown himself partial to the equal protection arguments made by gay rights activists in previous decisions.
    California's Prop 8 is a different matter, as it promises to broaden and nationalize the issue at its core - do gays have a civil right to marry, or not? - pits the 10th Amendment against the 14th, and arguably threatens the will of the people, as expressed by a majority of California voters in 2008. If the high court were to strike it down, it could conceivably overturn current law in 41 states - how's that for taking on state sovereignty? - although the justices could narrow their ruling to just California. The dispensation/denial of tangible benefits is not the issue here.
    Page 2 of 2 - For all the above reasons, this is a much more complicated case. Even some who sympathize with the gay rights cause, and who acknowledge that civil rights are not subject to popularity contests, have questioned whether it would be wise for the high court to intervene at this stage, as it seems to be happening naturally, state by state. That was the case with abortion rights before the court weighed in on Roe v. Wade in 1973, launching the issue into the controversy stratosphere, where it has remained ever since. Aside from the leave-well-enough-alone crowd, others suggest there will always be outliers on this issue, that a national consensus is therefore needed, that the court should not codify unfairness and inequality in those few states.
    In any case, same-sex marriage is legal in nine states, with Illinois perhaps becoming the 10th as early as January, when legislative leaders are reportedly prepared to call a bill for a vote. There is a fair amount of momentum for passage.
    Again, from this vantage, full civil rights for gay Americans is just the next domino to fall, as was once the case for black Americans, as was once the case for women. The justices are human, too, and rare is the court that wants to end up on the wrong side of history. As one Harvard law professor and historian told the New York Times, "Do you want to be Plessy" - when the 1896 court found "separate but equal" accommodations for people of different races constitutional - "or Brown?" the latter in reference to the 1954 high court decision that undid government-sanctioned segregation in the nation's schools, and elsewhere. There's no small amount of pressure for the court's members on that score.
    Ultimately, the Constitution means what it says, or it doesn't. The nation stands up for its founding principles, or it doesn't. It may take a while, but eventually Americans tend to land on the former, on both counts. The Constitution is not such a bad guide.
    Peoria, Ill., Journal Star

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