It is possible but unlikely that the court will hand down ringing decisions proclaiming marriage and all its benefits to be a constitutional guarantee, available to same-sex couples in every state. We believe in this outcome as a matter of moral and legal principle, and we expect it will prevail, eventually. But we also expect it will take more time for courts — and society at large — to embrace it fully.
It is also possible that the justices will uphold Proposition 8, DOMA’s noxious provisions or both. They must not choose this direction. Although many Americans’ attitudes on these matters are far from simple — we would hardly accuse President Obama of rank bigotry for opposing same-sex marriage only a couple of years ago — denying gay men and lesbians the right to marry is unjustifiable discrimination, and denying federal benefits to duly married couples is even more obviously repugnant to the notion of equal protection.
The arguments of those defending discrimination against gay couples are beyond far-fetched. Proposition 8’s advocates, for example, contend that restricting marriage to heterosexual couples must be rational because for thousands of years people widely agreed that the institution involved only the union of a man and a woman. That reasoning stinks of the faulty logic used to justify the persistence of all sorts of discrimination. They also argue that marriage’s purpose is to ensure that children are born into stable families; therefore, California should be allowed to limit marriage to only those capable of biological procreation. That is a narrow and insulting view of marriage. Would it then be constitutional to deny sterile heterosexual couples the right to marry? How about older couples? Moreover, lesbians can bear children and gay men can adopt. Why wouldn’t society want their parents to be wed, too?
A much more reasonable outcome than that would have the court point forward cautiously. Neither Proposition 8 nor DOMA’s worst provisions should survive the court’s review. But the justices can be expected to stop short of ruling so broadly that they would require every state to recognize same-sex marriage, when four-fifths of the states currently do not.
The court could knock down Proposition 8 in a manner that would restore same-sex marriage in California without affecting any other state, perhaps on procedural grounds. The Obama administration, meanwhile, has offered the justices another way to repudiate the proposition while limiting the impact of a ruling. Solicitor General Donald B. Verrilli Jr. argues that states that already offer same-sex couples all the benefits of marriage, as California does through domestic partnerships, cannot have any good reason to deny those couples the title. Ruling along those lines would have a broader impact than would a decision based on a technicality — California’s marriage ban would go, as would those of seven other states. That verdict, though, might also discourage states from offering same-sex couples partnership rights, for fear that a court would then force them to marry gay and lesbian couples.