Marriage & the court
The arc of the moral universe is long, said abolitionist Theodore Parker. “My eye reaches but little ways . ... And from what I see I am sure it bends toward justice.”
But few advocates of social change — in Parker's time or ours — act as though justice really is inevitable. They try to hasten it.
So it is for advocates of marriage equality, who, against once-impossible odds, have emerged from the political and legal wilderness.
Nine states and the District of Columbia, encompassing about 15 percent of the U.S. population, have legalized gay marriage. This includes three states whose voters approved it on Nov. 6. Though it was opposed by a clear majority, 57 percent to 35 percent, in a 2001 Pew Research Center poll, gay marriage now enjoys 48 percent support.
And the Supreme Court has agreed to consider overturning both the federal Defense of Marriage Act and state bans on gay marriage, raising the prospect of a national victory — but also risks.
The court could reject the advocates' arguments, setting a negative precedent. Or it could accept them — triggering a backlash even sharper than the pro-death-penalty reaction to the court's attempt to strike down 40 state capital punishment laws in 1972.
Gay marriage may be routine in Massachusetts, but it remains unthinkable in Oklahoma. Thirty-three states ban it, by statute or by constitutional amendment — many of which were adopted by referendum in the past dozen years.
Such concerns explain why many gay-rights lawyers frowned on the filing of a federal lawsuit to overturn California's 2008 referendum banning gay marriage.
They also explain why even supporters of gay marriage might not want the Supreme Court to precipitate the matter.
A ruling that the Constitution prohibits defining marriage as the union of a man and a woman would be one of the most activist in history, sweeping aside dozens of democratically enacted state and federal laws.
This case is not a no-brainer for either side. At least I don't think the lapidary phrases of our Constitution contain a definitive answer. And the court has had mixed results at slicing similar Gordian knots.
There is Roe v. Wade, which secured a woman's right to choose abortion — but it also stirred the pro-life movement, subjected the court to withering scholarly attack and forever politicized judicial nominations.
One of Roe's strongest supporters on the court, Justice Ruth Bader Ginsburg, noted in remarks at Columbia University in February: “It's not that the judgment was wrong, but it moved too far too fast.” At the time of Roe, abortion was legal in four states and legal under limited circumstances in about 16 others.
We'll never know what would have happened if the court had let the democratic process play out in the matter of abortion.
What we do know is that gay marriage also confronts the unelected justices with delicate issues of morality, equal rights, federalism and democracy.
Procedural and other particularities of the two cases before the Supreme Court could permit the justices to keep a door open to gay marriage without slamming another on its opponents.
Marriage equality is important. So, too, are national harmony, self-government and the rule of law. Whatever it does, the Supreme Court should make it possible for the American people, sooner or later, to have all three.
Charles Lane is a member of The Washington Post's editorial board.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Pirates rout Cardinals to keep things interesting in NL Central
- LaBar: Best next opponent for Brock Lesnar
- Rams take down TJ in season opener
- BVA breaks in new field by beating Trinity
- Defense sparks Freeport to Allegheny Conference victory over Shady Side Academy
- Clairton picks up where it left off, rout California, 72-0
- Bank of New York Mellon computer glitch examined for harm to investors
- Leader Times roundup: Karns City rolls in opener
- Connellsville Area School District to honor Hall of Fame inductees
- Charleroi can’t survive Scotties’ thunder
- High temperatures, low gas prices could entice 30.4M holiday travelers