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If court observers are interpreting the judicial tea leaves correctly, Connecticut's married same-sex couples could soon be getting equal treatment when it comes to various federal benefits. That would certainly be welcomed news and the only appropriate outcome to the lawsuit challenging the 1996 Defense of Marriage Act (DOMA).
During oral arguments presented to the U.S. Supreme Court on Wednesday, Justice Anthony M. Kennedy, considered a potential swing vote, repeatedly returned to DOMA's infringement on the authority of states to define marriage. States have long defined marriage in different ways - the age of consent to marry, the licensing requirements, waiting periods - but however a state defined marriage the federal government recognized the institution when it came to tax policies, survivor benefits, and other legal standing contained in more than 1,000 federal laws.
DOMA carved out one exception; federal authorities would not recognize same-sex marriages. In doing so, DOMA violates state authority and constitutes unequal treatment. The Supreme Court should toss it and we are confident it will. In addition to Connecticut, gay couples can legally wed in eight other states and in the District of Columbia.
It appears the Supreme Court will not, however, take the opportunity, presented by another case argued last week, to find that all existing prohibitions on same-sex marriage violate the Equal Protection Clause. That case centers on California's Proposition 8 that in 2008 overturned a California Supreme Court decision allowing same-sex marriage. About 18,000 same-sex couples had married in California during the few months it was legal.
Appellate courts, and ultimately the Ninth Circuit Court of Appeals, overturned Prop 8 on grounds it violated both the Constitution's Due Process and Equal Protection clauses.
The Supreme Court justices, however, appear ready to toss the case for lack of standing, letting the Ninth Circuit decision stand, again legalizing same-sex marriages in California, but avoiding a ruling that would find bans on gay marriage in all states unconstitutional.
"If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?" asked liberal Justice Sonia Sotomayor.
That outcome would be unfortunate, but the court's reluctance to dictate on this emotional matter is understandable. Fortunately, we are confident the tide of history is moving inexorably toward legalizing same-sex marriage.