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Most think the U.S. Supreme Court will issue a ruling this spring on whether gay marriages are legal, but that may not occur. Instead the court may simply let each state decide that issue.
Two related cases questioning the constitutionality of gay-marriage bans are currently before the Supreme Court. One involves California’s Proposition 8, in which that state’s voters banned gay marriages in November 2008.
The other case involves the federal Defense of Marriage Act, or DOMA, which was enacted Sept. 21, 1996, and required interstate marriage recognition to only opposite-sex marriages in the United States.
Section 3 of DOMA codifies the nonrecognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors’ benefits, immigration, and the filing of joint tax returns.
In two days of hearing preliminary arguments in these cases, Supreme Court justices remarked twice that marriage has always been a state issue. Justice Anthony Kennedy said DOMA runs the risk of conflicting with states’ roles in defining marriage.
He has a valid point. Congress and previous activist Supreme Courts – notably during Earl Warren’s reign as chief justice – have usurped many of the powers originally delegated to states in the Constitution.
In doing so they have usually fallen back on the Equal Protection Clause of the 14th Amendment that was enacted in 1868, shortly after the Civil War. That clause basically prevents states from discriminating against anyone, as some former Confederate states were doing against blacks.
But does regulating who may or may not marry constitute discrimination?
In Massachusetts, girls as young as 12 can marry with parental consent. In Nebraska no one under 17 can marry even with parental consent and the age for anyone to marry without parental consent is 19. In most states it’s 18.
Those laws obviously vary, but no one has declared them unconstitutional, as states’ rights to regulate marriage have traditionally been recognized.
So we think the Supreme Court may well decide that each state has the right to decide whether marriage can be defined as only between a man and a woman. And that might be the best compromise to help the federal government get beyond a divisive issue that has taken too much of its time away from more pressing issues.
But the court may also recognize the validity of civil unions to prevent discrimination against same-sex couples on issues involving insurance and Social Security survivors’ benefits.
We have no problem with that. It seems to us that any people legally living in the same household, regardless of their relationship, should have the right to the same insurance and survivors’ benefits as anyone else, and to file joint tax returns if they so choose.
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