The U.S. Supreme Court's decision to hear arguments early next year in two cases challenging laws defining marriage as the union only of a man and a woman could prove momentous, if the justices seize the opportunity to make the choice of same-sex couples to marry a constitutional right.
The court would serve the nation well by addressing the fundamental right question. Refusing to allow two people of the same sex to marry denies them the equal protection of the law guaranteed by the U.S. Constitution. Same-sex couples shouldn't have to continue fighting state by state for that right, even if lately they are winning those battles.
One of the cases asks the court to decide whether Congress can enact a law that treats same-sex couples legally married under state or another country's law differently from married, opposite-sex couples, as the federal Defense of Marriage Act does.
Under DOMA, a New York woman, Edith Windsor, who married her partner, Thea Spyer, in Canada in 2007, had to pay about $360,000 in inheritance taxes when Spyer died in 2009. She wouldn't have had to pay the tax if the law recognized her marriage, as it does those of opposite-sex couples.
The court could decide that issue without addressing the broader question of whether same-sex couples have a constitutional right to marry. But the other case the court accepted Friday poses the question more expansively. Was it constitutional for voters in California to amend the state constitution to take away the right of same-sex couples to marry that had been granted by the California courts?
The U.S. Supreme Court could also resolve that dispute narrowly, without addressing the broader question of same sex marriage. But the public's attitudes are shifting rapidly. Polls now indicate a majority of Americans favor allowing the unions. Nine states and the District of Columbia have authorized same-sex marriage.
The time is right for the U.S. Supreme Court to resolve the matter for the entire nation.