Supreme Court justices recently seemed tempted to put off deciding the question of a constitutional right to same-sex marriage. But they appear prepared to take the significant step of overturning the Defense of Marriage Act and granting full federal benefits to same-sex couples in states that recognize their marriages. Indeed, the juxtaposition of the two cases may have the beneficial effect, from the perspective of those supporting same-sex marriage, of making the DOMA case look like a relatively easy and modest move.
Ultimately, will a majority of the court find that the Constitution protects the right of gay couples to marry? Comments in arguments on California’s Proposition 8 suggested the possibility of a skittish, tenuous majority inclined toward finding a right. Justice Anthony M. Kennedy, the likely swing vote, worried openly about the court being asked “to go into uncharted waters.” But, he told Charles Cooper, who was defending the ban, “there are some 40,000 children in California” who “want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?” Actually, what Cooper thinks doesn’t matter. But if Kennedy is hearing those voices, that signals where in those uncharted waters the court may end up.
The two days of oral arguments underscored how difficult it is for opponents of marriage equality to concoct a convincing case for limiting marriage to opposite-sex couples. Cooper was reduced to citing the state’s supposed interest in “responsible procreation,” within the context of marriage. Yet as Justice Elena Kagan pointed out, this rationale explains why same-sex couples might not be included in the definition of marriage — it doesn’t provide a basis for excluding them, any more than couples too old to have children could be barred from marrying.
‘Uniformity’
The argument from Paul Clement, supporting DOMA on behalf of Republicans in the House of Representatives, boiled down to the alleged federal need for “uniformity” in administering benefits. Again, Kagan: “Historically, the only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the state.” Indeed, as Justice Sonia Sotomayor pointed out, discriminating against same-sex couples is hardly uniform. “You are treating the married couples differently,” she said. “You are saying that New York’s married couples are different than Nebraska’s.”