Civil and Human Rights

Marriage equality: Not for states to decide

The Supreme Court Wednesday struck down Section 3 of the federal Defense of Marriage Act — which denied federal benefits to married gays and lesbians—as discriminatory and a violation of equal protection.


The court, however, declined to address the question raised by another important case, Hollingsworth v. Perry, about whether the right to marriage extended to gays and lesbians nationwide.


So, are supporters of marriage equality better off without the Supreme Court declaring that gay and lesbian couples have a constitutional right to marry?


Most Americans now back same-sex marriage, according to a recent poll, with younger voters the strongest supporters. A majority also believes, however, that the decision to recognize same-sex unions should be left up to individual states. As more states pass laws recognizing same-sex unions, some marriage equality supporters argue that advocates “shouldn’t mess with progress.” Or they worry about a backlash if the court were to recognize a right to marriage equality that would apply in all 50 states.


Regardless of whether it is sound political strategy to “take it slow,” the fact is “letting the states decide” is not what the Constitution demands.


The Constitution enshrines certain rights and liberties as so important that they are above the politics of the day. Freedom of speech and religion, for example, are never put to a popular vote.


Though our federal system embraces state policy experimentation and diversity in many contexts, the Constitution was amended after the Civil War to take away from the states the ability to “experiment” with laws that perpetuate inequality. The Constitution does not allow a state to vote on reinstating segregation. Nor does the Constitution permit states to place a badge of inferiority on gay and lesbian couples and their families.


The Supreme Court may be reluctant to unequivocally decide what it considers to be a hot-button social issue that is still percolating through the states. The Constitution, however, stands for the proposition that some rights cannot be left to the whims of a democratic majority. Equality before the law is one of those rights.


Consider our nation’s history of racially discriminatory marriage laws. In 1967, while much of the nation had moved on from abhorrent antebellum attitudes about marriage between people of different races, 16 states still had laws on the books that prohibited interracial couples from marrying. Fourteen other states had repealed similar laws over the previous 15 years.


But the Supreme Court did not decide to wait and see if the rest of the United States would follow suit when Mildred and Richard Loving, a black woman and a white man, asked the court to strike down Virginia’s ban on interracial marriage.


Instead, the Supreme Court, in Loving v. Virginia, applied the Constitution’s guarantees of equality and liberty to strike down Virginia’s discriminatory marriage law as unconstitutional — striking down the other 15 state laws along with it.


The court’s 1967 opinion noted that marriage is something traditionally left to the states. It observed that there was a long history of limiting marriage to persons of the same race — Virginia’s law had roots in the colonial period. It acknowledged that the drafters of the 14th Amendment may not have originally intended the amendment to strike down laws prohibiting two people of different races from marrying. It also noted that some states had recently established more equitable marriage laws of their own accord.


Yet the Supreme Court still struck down Virginia’s discriminatory marriage law — ruling it unconstitutional.


The Supreme Court should have followed this precedent in the challenge to California’s ban on same-sex marriage.


Yes, marriage is still a subject traditionally left to state regulation — but our Constitution places limits on how states can regulate marriage. Yes, our country has a long history of discriminating against gay and lesbian couples — but the court has repeatedly emphasized that the historical persistence of discrimination cannot save such practices from being struck down as unconstitutional.


After all, if a history of discrimination could carve out an exemption from the Constitution’s guarantee of equality, we’d still have segregated schools.


In addition, the drafters of the 14th Amendment may not have been specifically thinking of gay and lesbian couples when they spoke of the need to ensure that the basic civil right of marriage was equally available to all. But the amendment’s guarantee of “equal protection of the laws” is sweeping and universal. It protects all people, whether African-American or white, gay, lesbian or heterosexual, native-born or immigrant.


As the framers of the 14th Amendment recognized, the right to marry the person of one’s choosing is a protected civil right, inherent in liberty and freedom; and the equality of rights secured by the amendment’s Equal Protection Clause includes the equal right to marry the person of one’s choice.


By denying same-sex couples the right to marry, California’s Proposition 8 contravenes this original meaning. Fortunately, today’s ruling from the Supreme Court in the Prop 8 case leaves the federal district court’s decision recognizing this fundamental right to stand. And Justice Anthony Kennedy’s opinion in Windsor, striking down Section 3 of DOMA, has words of encouragement for gay and lesbian couples seeking recognition that their relationships are “worthy of dignity in the community, equal with all other marriages.”


Given that the majority of Americans now support marriage equality, there is hope that other states will right this wrong on their own. But the Constitution tells us — in no uncertain terms — that this equality is not apportioned based on popularity or political convenience.


The Supreme Court should not shy away from applying the Constitution. Or its promise of equality for all could begin to ring hollow.

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