Civil rights for all

Supreme Court can secure its legacy by affirming marriage equality

This week, the U.S. Supreme Court heard oral arguments on two of the most significant civil-rights cases in years. One is focused on whether California’s law banning same-sex marriages is constitutional, while the other asks the same question of the federal Defense of Marriage Act, passed in 1996.

This comes at a time when attitudes toward marriage equality are liberalizing dramatically. A recent ABC News poll shows that 58 percent of Americans now support the freedom of same-sex couples to marry. The poll also shows that, by 64 percent to 33 percent, Americans believe the issue should be decided nationwide under the Constitution, not in the patchwork, state-by-state form that confronts couples today.

The California case, Hollingsworth vs. Perry, is a review of a 9th Circuit Court of Appeals ruling overturning Proposition 8, the 2008 initiative prohibiting same-sex marriage, on the basis that it is unconstitutional. The DOMA case, U.S. vs. Windsor, challenges a law that prohibits myriad federal benefits from going to gay couples, even if they’re legally married.

Kristin Perry is the name of a lesbian woman who lives with her partner in Berkeley, where they have reared four children. They were denied a marriage license in 2009 because of Proposition 8. Edith Windsor is a computer programmer who moved in with her partner in 1967 and finally married her in 2007, in Canada. When her wife died in 2009, the DOMA prohibited Windsor from receiving married estate-tax advantages, and she had to pay $363,053 in estate taxes.

Early indications are that Justice Anthony Kennedy will make the swing vote. Although he’s generally conservative, he’s written several notable opinions upholding gay rights. It’s easy to picture him supporting the appeals court’s determination that Proposition 8 is unconstitutional.

The bigger issue is whether the justices will take the more expansive view and consider these cases in terms of the U.S. Constitution, as most Americans prefer. By deciding this issue once and for all and voting that discrimination against homosexuals is unconstitutional, the court could claim a place in history as the final guarantor of equality under the law to all Americans.