JEFF SYBERTZ ‘13
This past week, the US Supreme Court agreed to hear two cases involving same-sex marriage to determine whether California’s Proposition 8 and the Defense of Marriage Act are unconstitutional.
In 2008, California voters approved a ballot measure to make same-sex marriage illegal. In February of this year, the 9th Circuit Court of Appeals ruled that Proposition 8 was unconstitutional because it was an infringement on the civil liberties of California citizens. The Defense of Marriage Act (DOMA) is a federal law enacted in 1996 that defined marriage as the legal union between one man and one woman. Under this law, states do not have to recognize same-sex marriages from other states and same-sex couples are unable to receive marriage federal benefits. The Supreme Court will now determine the constitutionality of both cases. Although the decision will not necessarily end the debate over same-sex marriage, the fact that the Court has agreed to hear these cases just a month after three more states voted to legalize same-sex marriage and a few months after President Obama officially supported the issue means that there is an increasing norm across the country that says marry is a human right that everyone possesses, regardless of sexual orientation.
Currently, same-sex marriage is legal in nine states and the District of Columbia. Although this number means that it is not legal in 41 other states, people around the country are starting to realize that preventing others from marrying is simply a violation of a person’s civil rights. Aside from the nine states that have legalized same-sex marriage, a number of states recognize marriages from other states and some have granted same-sex couples the right to civil union. A civil union is not the same as a marriage.
In many ways, granting civil union rights to same-sex marriage couples is a further derogation of their rights because it blatantly says that they are different from the rest of society and, therefore, not entitled to the same rights. However, it is nonetheless a recognition that same-sex couples do have some government-protected rights. In the grand scheme of things, a civil union is better than no recognition or a constitutional prohibition, but it is still not enough.
What has been the most encouraging part of these recent marriage equality advancements is the fact that it has been the electorate, not politicians or the government spearheading these movements. In Maine, Maryland, and Washington, the three states that passed marriage equality bills this past November, a popular referendum was the method of legalization. That is to say, more than a majority of the voters in these three states supported marriage equality. Other states that have marriage equality have passed constitutional amendments but the fact that a popular vote granted marriage equality in these three states means that people are starting to realize that a democratic society cannot have marriage inequality. Granted, there will always be people in this country who will be fundamentally opposed to same-sex marriage and they are entitled to their own opinions. However, it appears that the power of these people is quickly deteriorating, especially in this past year.
2012 has been quite a year. We have reelected a president, suffered through a terrible natural disaster, witnessed civil unrest throughout the Middle East and southern Europe, and are preparing to welcome into the world a future heir to the British throne. Yet I believe that marriage equality will ultimately define this historical year. For the first time in our history, we had a sitting President publically support marriage equality. Although marriage equality has proven to be a states’ issue and, therefore, the President does not have a huge amount of power in this realm, the fact that he publically supported marriage equality is no minor event. Sure, it can be argued that this was merely a political tactic to get support in an election but the fact that he would see this as a politically advantageous maneuver means that he realizes the importance of marriage equality.
Now we have the Supreme Court ready to hear two cases regarding DOMA and California’s Proposition 8. It will be interesting to see where the court will fall on these two cases because it currently has four fairly conservative justices and four fairly liberal justices with one that usually falls in the middle. Although we would like to think that something as basic as the right to marry would be able to transcend conservative and liberal ideologies, the past has shown us that nothing is immune to politics. Moreover, unlike the ballot measures to pass marriage equality in Maine, Maryland, and Washington, the electorate does not really have any power in determining how the Court will rule. Nine men and women will have the final and only say on these two cases. Their job is to resist the special interests from both sides and objectively determine the constitutionality of two cases. Hopefully, they will realize that the US Constitution is in favor of granting equal rights to all of its citizens, regardless of gender, race, religion, or sexual orientation. However, even if they ultimately rule that DOMA and California’s Proposition 8 are both constitutional, the norm that marriage equality should exist will not disappear.
A recent Pew Research Poll said that 49 percent of Americans are in favor of allowing same-sex marriage and only 40 percent oppose it. That 49 percent is rapidly increasing and I imagine that within a few years, that number will be around 55-60 percent.
Hopefully, in that time, more states will have legalized same-sex marriage and put more pressure on the federal government to protect all of its citizens.