Washington Post: Strike Down DOMA and Gay Marriage Bans

As noted yesterday, much to my surprise the local Daily Press main editorial on Sunday called on the United States Supreme Court to strike down the Defense of Marriage Act and state bans on gay marriage.  Less surprisingly, the Washington Post had a similar main editorial yesterday, although it argues less broadly against all gay marriage bans than the Daily Press.  To me, how the Court rules in the marriage cases will be a real demonstration as to whether equality under the law and religious freedom for all citizens truly exist in America.  If DOMA and or gay marriage bans are upheld, then the Court will have given proof that the image America likes to hold up of itself is a lie and that real freedom and liberty do not exist.   For those of us who are gay, then the issue becomes whether we are content to be less than full citizens or leave.  Candidly, if my circumstances were different, I'd have left long ago - from my experience as a gay man with the courts, I have little faith in America.  But I digress.  Here are editorial highlights:

The justices have many options as they consider how to rule. But more important than the particulars of their eventual holdings is the general direction they choose to take: They must move the country forward, not back.

It is possible but unlikely that the court will hand down ringing decisions proclaiming marriage and all its benefits to be a constitutional guarantee, available to same-sex couples in every state. We believe in this outcome as a matter of moral and legal principle, and we expect it will prevail, eventually. But we also expect it will take more time for courts — and society at large — to embrace it fully.

It is also possible that the justices will uphold Proposition 8, DOMA’s noxious provisions or both. They must not choose this direction.  .  .  . denying gay men and lesbians the right to marry is unjustifiable discrimination, and denying federal benefits to duly married couples is even more obviously repugnant to the notion of equal protection.

The arguments of those defending discrimination against gay couples are beyond far-fetched. Proposition 8’s advocates, for example, contend that restricting marriage to heterosexual couples must be rational because for thousands of years people widely agreed that the institution involved only the union of a man and a woman. That reasoning stinks of the faulty logic used to justify the persistence of all sorts of discrimination.

Gay-rights advocates are winning the argument. American society is changing faster than anyone could have thought possible only a decade ago. Nine states and the District now allow same-sex marriage.   .  .  .  .  Among young Americans, who grew up in an era in which friends and relatives could more easily come out of the closet and be themselves, there is hardly a debate.  .  .  .  .  The Supreme Court must play a part in this civil rights triumph — and justices should not shrink from it.

Another Washington Post column also looks at what the Supreme Court justices may do and is less optimistic.  Here are highlights from that column:

Don’t take anything for granted. The conservative activists on the Supreme Court may not be able to halt the inexorable shift toward acceptance of gay marriage, but we probably should expect them to try.

The two big cases being argued before the court this week could turn out to be landmarks that confirm the nation’s progress toward marriage equality — or speed bumps that impede it. Either way, the destination is clear: Nearly 60 percent of Americans approve of gay marriage, according to a Post-ABC News poll, including 80 percent of adults under 30. That looks like less a question than a decision.

You’d think the justices would have these numbers in mind  .  .  .  .  But the conservative wing of the court has no great respect for public opinion.

Even a double defeat for the forces of fairness and inclusion is conceivable, although such a result would be so illogical that even this court, the most activist in decades, probably couldn’t manage it with a straight face.

Such intellectual contortion might not disturb the slumber of the unapologetic social engineers on the court — Justices Antonin Scalia, Clarence Thomas and Samuel Alito. But it might unsettle the other conservatives, Justice Anthony Kennedy and Chief Justice John Roberts.

[O]n Proposition 8, the court could accept the opponents’ view that since gay marriage was legal in California when the initiative was approved, the measure unconstitutionally takes away rights from a targeted class while leaving those same rights intact for others — a violation of equal protection. This result, probably the best that can realistically be hoped for, would not end the battle over gay marriage, which is recognized in just nine states plus the District of Columbia. But it would allow the rapid progress toward marriage equality to continue, and it’s pretty clear where this freight train is heading.

There is, of course, the possibility that the court might choose to frame its rulings in both cases as narrowly as possible, effectively ducking the issue and leaving it to elected officials to work out. But if the justices wanted to take a pass, why did they agree to decide these cases in the first place?

The obvious issue that these two cases do not explicitly raise, but that will have to be addressed sooner or later, is mobility. This is a peripatetic society; we move from state to state. How can two men or two women be married in one state but not in another?

If today’s court were one that cared about being on the right side of history, it would use that precedent[Loving v. Virginia] to rule that if a couple is considered married in Massachusetts and Maryland, it must be considered married in Montana and Mississippi, too.  But this isn’t that kind of court, I’m afraid. More likely is an attempt to hold back the tide — or a grudging acknowledgement that marriage equality’s time has arrived. 

I will continue to hold my breath and hope for the best, but expect the worse.   Sadly, currently that's part of being gay in today's America, especially living in a state like Virginia.