EDITORIAL: Under the Constitution, same-sex marriage can't be denied

A sweeping ruling in California that gays and lesbians have a constitutional right to marry has recast the explosive issue and set the stage for an eventual showdown in the nation's top court. Clearly, it's an issue whose time has come.

The U.S. District Court ruling, overturning California's voter-approved Proposition 8, framed the issue starkly, finding that the rights of a minority to due process and equal protection of the law cannot be denied by voters at the ballot box.

They shouldn't be denied at all. Gay and lesbian couples should be allowed to marry.

The national dispute over same-sex marriage won't be resolved anytime soon. Last week's decision has been appealed to the U.S. Circuit Court of Appeals in San Francisco. But U.S. District Court Judge Vaughn Walker's ruling - the first by a federal court to go directly to the constitutional core of this emotional debate - has cast doubt on the validity of all the state laws and court decisions that stop short of allowing same-sex couples to marry.

Walker's logic is inescapable. "Proposition 8 fails to advance any rational basis for singling out gay men and lesbians for denial of a marriage license," he said. "The evidence shows that Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite-sex couples are superior to same-sex couples."

That conclusion is just as valid in the 29 other states that ban same-sex marriage, and for those, like New York, that provide some recognition for the relationships, but don't allow marriage.

Only the District of Columbia and five states - Massachusetts, Iowa, New Hampshire, Connecticut and Vermont - currently allow same-sex couples to legally wed. And under the federal Defense of Marriage Act, and similar laws in 37 states, same-sex marriages performed where they're legal are not recognized elsewhere. Those misnamed laws should be repealed. They'll become irrelevant anachronisms if same-sex marriage bans are ultimately ruled unconstitutional.

The nation confronted a similar situation in 1967, when the U.S. Supreme Court rejected laws in 16 states that criminalized interracial marriage. In that case, Mildred Jeter, a black woman, and Richard Loving, her white husband, had been convicted in Virginia of felony miscegenation and sentenced to a year behind bars. The top court tossed out the conviction and invalidated the laws, ruling that they violated equal protection and due process rights.

States could help avoid a culture war by revisiting the issue before the federal litigation runs its course. The right to marry should be adopted, state by state across the country, making any subsequent court rulings largely superfluous.

The New York State Senate rejected same-sex marriage last December. The Assembly has repeatedly passed the legislation. The Senate should revisit the issue, and this time give its approval. Activists energized by last week's legal win in California will ratchet up the pressure. It's sure to become a hot issue in the run-up to November, when the entire legislature is up for re-election, and New York will choose its next governor.

States have traditionally controlled marriage. They issue licenses and determine things like how old you must be to wed, the need for witnesses, who can perform the ceremony, and what rights and privileges attach to the contractual relationship. That shouldn't and won't change. But control doesn't include the power to run roughshod over a minority's rights.

Anti-gay discrimination is stubborn. It has been slowly giving way, as it should, but same-sex marriage remains a conspicuous sticking point. It's time for that to change. The ruling in California has presented the nation with the clearest statement yet of this fundamental issue. The Constitution demands it, and it's the right thing to do. hN