The U.S. Supreme Court’s decision Friday afternoon to hear 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 taking tha tissue head-on when it decides the cases sometime next year. 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 should not have to continue fighting state by state for that right to be protected.
One of the cases asks the court to decide whether the Congress can enact a law that treats same sex couples legally married under state 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 that she wouldn’t have owed 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.
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.