Over and over in American jurisprudence, the members of our Supreme Court have faced a decision: should they write themselves into history? Or duck?
Friday's announcement that they've placed two same-sex marriage cases on their docket suggests that they won't duck this time. United States v. Windsor and Hollingsworth v. Perry are a matched set, each turning on when government in the United States may discriminate on the basis of sexual orientation and when "equal protection of the laws" forbids such discrimination.
Windsor is a challenge to the Defense of Marriage Act, which declares that federal marriage benefits are available only to "a legal union between one man and one woman as husband and wife." In it, the Supreme Court is likely to revisit the question of when, if ever, it makes sense for society to discriminate against gay couples or individuals. The Second Circuit Court of Appeals in effect decided that the answer is virtually never. Homosexual men and women, it reasoned, have been subject to such long-lasting prejudice and persecution that any law affecting them must be presumed invalid unless government can show a very good reason for adopting it.
Hollingsworth v. Perry concerns a California ballot initiative that declared "only marriage between a man and a woman is valid or recognized in California." In Perry, the Ninth Circuit Court of Appeals fudged the issue, holding that California's decision to offer marriage to gay couples, and then to retract the offer after a popular vote, was so arbitrary that no court could uphold it.
If the Supreme Court holds that neither federal nor state law can restrict marriage, the result would be revolutionary. Although the lawyers behind Perry are determined to obtain such a ruling, it seems less likely than another: that states may restrict marriage, but if a state decides to open the institution to gay people the federal government may not refuse to recognize the resulting unions.
A decision that restrictions on gay marriage don't violate the Constitution would not halt or reverse the trend demonstrated in last month's referendum victories for same sex marriage. It would nevertheless be a profound setback to the movement for equality -- history provides mournful examples of court cases that slowed needed social change, sometimes by many decades.
I will make no pretense of detachment on this issue. Almost twenty-five years ago, I read And the Band Played On, an epic account of the beginnings of the AIDS epidemic by San Francisco Chronicle reporter Randy Shilts, who died of the disease in 1994. Soon after, I wrote my first column in favor of gay marriage. My thinking was and remains simple: marriage really is as important to society as opponents of same-sex marriage claim. The institution provides a unique social balance wheel to individuals, families, and indeed whole nations. For that reason, closing it to some competent adult couples does more than deprive them of equality; it deprives us all of families who could help keep society sane. The momentum that has gathered behind gay marriage in the past eight years stems in large part, I think, from the fact that all of us have now seen what these marriages look like, and that they are good -- good for all of us.
The immediate future of marriage equality may lie in the hands of one man, Anthony Kennedy. Kennedy is a profoundly conservative man; he is a religious man; he is a man of deep humanity; and he is a man of sweeping historical ambition. He has written powerfully of the rights of gay people in other contexts; but there is no clear sign that he believes marriage--a legal relationship that, for believing Christians, has at least a sacramental origin--must be open to gay couples.
Kennedy is also possessed of a deep reverence for the Supreme Court and for what he sees as its redemptive role in America's story. It may be that he will see these cases as a chance for the Court--and for himself--to rise to the challenge of history and write a new chapter in the long story of equality.
But he may not.
Ready or not, the Court and the Constitution will squarely confront this issue. Let's hope all parties can go forward with civility, and that we can view the unfolding drama as embodying our hopes and not our fears.
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