When the lawyers on opposing sides of the same-sex marriage cases pending before the Supreme Court took their arguments to the nine justices in late April, the conversation took a turn toward the ancient.
“Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife,” Chief Justice John Roberts, the lawyer representing same-sex couples seeking to marry in Kentucky, Michigan, Ohio and Tennessee, told Mary Bonauto during oral arguments.
“This definition has been with us for millennia,” Justice Anthony Kennedy said later. “And it’s very difficult for the court to say, ‘Oh, well, we know better.’”
The Supreme Court will rule in the coming days on whether the U.S. Constitution requires states issue marriage licenses to same-sex couples. Another question before the court is whether states that don’t allow same-sex unions must recognize same-sex unions performed out of state.
Clearly, though, some of the justices were pondering another question: Whether they would be establishing a new societal norm — something that’s not explicitly their job — by finding states can’t ban same-sex marriages within state lines.
But the questions before them are strictly constitutional. We hope the court’s answer extends the same constitutional protections to same-sex couples that heterosexual couples enjoy, unquestioned, throughout the U.S.
Such an answer is a reasonable reading of the 14th Amendment to the Constitution. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” the amendment reads, “nor deny to any person within its jurisdiction the equal protection of the laws.”
A definition of marriage that excludes same-sex couples, in our view, would “abridge the privileges or immunities of citizens.”
Irrespective of the constitutional question, some of the justices during oral arguments seemed reluctant to jump too far ahead of society on a question that is still being debated. Chief Justice John Roberts turned to Maine voters to illustrate that point.
“In 2009, I guess it was by referendum, or whatever, they banned gay marriage,” he told Bonauto, who lives in Portland. “In 2012, they enacted it as law. I mean, that sort of quick change has been a characteristic of this debate; but if you prevail here, there will be no more debate.”
But Roberts shouldn’t be afraid of jumping ahead of public opinion on a question that should be decided strictly on its constitutional merits nor should he be worried about putting an end to the debate.
Federal courts have struck down state same-sex marriage bans at an impressive pace, but public opinion also has shifted rapidly. In 2005, according to Gallup, just 37 percent of Americans supported same-sex couples’ right to marry. A decade later, a clear majority, 60 percent, endorse it.
Those figures should give the more hesitant justices comfort that they will neither be speeding past the public conscience nor prematurely closing the debate. With 60 percent in support of same-sex rights, 40 percent still aren’t on board. Their opinions likely won’t change directly as a result of a Supreme Court ruling in favor of same-sex marriage. If they change their minds later on, it largely will be because of public debate.
And the debate isn’t settled even in states where same-sex couples can marry. North Carolina and Utah this year debated, then passed measures allowing government officials to refuse to perform same-sex marriages. Whether such an allowance for government employees is constitutional is another, related debate to be had.
The bottom line is the same-sex marriage question is one of basic civil rights. American citizens should be entitled to those rights simply because they are citizens — not because others in the U.S. are OK with them having those rights.
That’s our position in this debate. Regardless of how the Supreme Court rules, we have no fear of the debate stopping.
