Friday, December 14, 2012

Same-Sex Marriage Reaches the Supreme Court

The Supreme Court last week agreed to hear two landmark lawsuits involving same-sex marriage.

The plaintiffs in United States v. Windsor argue that the Defense of Marriage Act, passed during the Clinton Administration in 1996, violates individual's Fifth Amendment rights to equal protection under the law and the right of states to regulate marriage as they wish. The Defense of Marriage Act denies federal marriage benefits to same-sex spouse, thus arguably violating the principle of equal protection, and defines marriage as being between a man and a woman, thus arguably invading the powers of states.  

The other case, Hollingsworth v. Perry, is a challenge to the constitutionality of Proposition 8, which reversed a California Supreme Court decision granting marriage rights to same-sex couples.  Proposition 8 amends the California Constitution to specify that marriage is between a man and a woman. The plaintiffs in this case argued successfully before a federal appeals court that Prop. 8 violates the 14th Amendment's Equal Protection Doctrine. 

Commentators disagree sharply over what the Supreme Court will do with these two cases, or whether they will decide them at all--there are grounds for argument that neither case is properly before the Court.

But perhaps a more interesting question is whether, in our fractious democracy, the Supreme Court should be taking the lead on this polarizing public policy issue.  Some gay rights supporters worry that even a favorable decision will set the movement for same-sex marriage back rather than advancing it. 

Jonathan Rauch, for example, pointing to the civil rights movement, argues in The New Republic that "real civil rights . . .comes from consensus, not courts," and that the gay rights movement has made substantial progress in recent years in convincing fellow Americans that same-sex marriage is a human right. He fears that a backlash against a favorable Court decision will freeze anti-gay attitudes in place.  Can the Supreme Court resolve the same-sex marriage issue, or is it more likely cause further polarization and so delay resolution?  And what do the examples of Brown v. Board of Education and Roe v. Wade suggest about this very weighty question?

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