Editorial Board

The Supreme Court’s Chance to Make History

The question before the U.S. Supreme Court is not whether to allow same-sex marriage, but how.

That should be the question, anyway. Last week the court 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.” He is undoubtedly right about that. 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 is 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 is 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 federal government’s right to define marriage. 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.

As always, the legal options are slightly more complicated than that. But the dilemma is simple enough and is nicely captured by our friend Andrew Sullivan, who has done more than perhaps anyone to make the conservative case for same-sex marriage. “I am worried about two things,” writes Sullivan, who is gay. “I’m worried that we will fail, and I’m worried that we will succeed.”

After all, if we want to live in a country that allows gay Americans the same rights as all Americans -- and we do -- then how can we allow any limits on same-sex marriage? At the same time, acceptance of same-sex marriage is not something that can be imposed by judicial fiat.

Gay marriage is fast becoming a reality. The level of public support for same-sex marriage continues to rise, and just last month voters in three states legalized it, bringing the number to nine plus the District of Columbia as of Jan. 1. In politics and culture, support of same-sex marriage is becoming commonplace. Thankfully, there is little the Supreme Court can or should do about this.

What’s more, the court’s intervention on major social and political issues is not always helpful. One of the leading critiques of Roe v. Wade is that it was a legal short circuit of the political process; you can believe, as we do, in a woman’s right to an abortion and also think that the court’s 1973 decision inflamed an already divisive issue. Some proponents of same-sex marriage made this argument in recommending against the court’s review of the California case.

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.