The question before the U.S. Supreme Court is not whether to allow same-sex marriage, but how. That should be the question, anyway. The court has agreed to hear two cases involving the constitutionality of same-sex marriage. Theodore Olson, one of the lawyers for proponents of same-sex marriage, called it “perhaps the most important remaining civil-rights issue of our time.” What the court must do is find a way to encourage the movement’s progress without needlessly antagonizing opponents.
The court will probably hear oral arguments in March in the two historic cases. One concerns the legality of a provision of the Defense of Marriage Act, the 1996 federal law that defines marriage as “a legal union between one man and one woman.” Under DOMA, gay couples in states where it’s legal for them to marry can’t claim federal tax breaks or other benefits that straight married couples receive.
The other case involves California’s Proposition 8, which bans same-sex marriage. Opponents of the 2008 law say it’s flatly unconstitutional, a violation of the 14th Amendment’s guarantee of “equal protection of the laws.” In February a federal appeals court agreed.
By accepting these two cases, the court has delineated a choice familiar to civil-rights advocates for decades and to defenders of American ideals of freedom for much longer than that: what kind of progress to accept. In the DOMA case, the court could uphold, strike down, or refine the provision at issue. In effect, the issue would be adjudicated state-by-state. The California case is more straightforward: Either same-sex marriage is constitutional or it is not. In all 50 states.
In the law, as in politics, there is an honorable tradition of dodging the question. It wouldn’t necessarily be horrible if the court didn’t pronounce next year that same-sex marriage is a constitutional right. It needn’t even rule on the constitutionality of DOMA, although the law infringes on what is traditionally a state right. Whatever the court does, however, it should be careful not to impede the expansion of rights and the cause of fairness that help to define America.