One of the great civil rights questions of the day will be weighed by the Supreme Court: must all 50 states allow gay and lesbian couples to marry?
Largely as a consequence of the Supreme Court’s failure to act in October, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.
The pace of change on same-sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.
Based on the court’s failure to act in October and its last three major gay rights rulings, most observers expect the court to establish a nationwide constitutional right to same-sex marriage. But the court also has a history of caution in this area.
In 2013, the Supreme Court avoided the question in Hollingsworth v. Perry, concerning California’s Proposition 8, but on the the same day, in United States v. Windsor, the court struck down struck down the part of the Defense of Marriage Act that barred federal benefits for same-sex couples married in states that allowed such unions.
The Windsor decision was based partly on federalism grounds, with Justice Anthony M. Kennedy’s majority opinion stressing that state decisions on how to treat marriages deserved respect. But lower courts focused on other parts of his opinion, ones that emphasized the dignity of gay relationships and the harm that families of gay couples suffered from bans on same-sex marriage.
In a remarkable and largely unbroken line of more than 40 decisions, state and federal courts relied on the Windsor decision to rule in favor of same-sex marriage.
Taking on a historic constitutional challenge with wide cultural impact, the Supreme Court on Friday afternoon agreed to hear four new cases on same-sex marriage. The Court said it would rule on state power to ban gay and lesbian marriage and state power to refuse to recognize such marriages performed out of state. A total of one hour and ninety minutes was set for the hearings, likely in the April sitting.
The Court fashioned the specific questions it is prepared to answer, but they closely tracked the two core constitutional issues that have led to a lengthy string of lower-court rulings striking down state bans. As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but under court challenge.
Susan Russell writes in the Huffington Post:
Today’s announcement that the Supreme Court will at long last rule on state power to discriminate against the marriages of same-sex couples is good news not just for gay and lesbian couples but for anyone who believes that liberty and justice for all really means “all.” And it is long past time to recognize that equal protection is not equal protection unless it protects all Americans equally.
As an American citizen, I believe in the promise we make every time we pledge allegiance to our flag: the promise of liberty and justice for all. And as a priest and pastor, I believe in the biblical promise that “the truth will set us free.”
And the truth is that continuing to discriminate against the marriages of some Americans undermines the liberty of all Americans. The truth is — in the words that are one of Martin Luther King’s greatest legacies — “We know that none of us are free until all of us are free.” The truth is that the arc of history we are promised bends toward justice is bending a little closer every time we take another step forward in the struggle to end discrimination against LGBT people in our nation. And the truth is that today the Supreme Court took a big step toward taking a giant step.
It has been a long journey — and it is far from over — but it is never the wrong time to do the right thing. And today the Supreme Court did the right thing. So let us rejoice and be glad in it. And then let’s get back to work.
Can I get an Amen?
Posted by Andrew Gerns