The Supreme Court is currently hearing challenges to the constitutionality of the 1996 Defense of Marriage Act as well as Proposition 8. DOMA confines federal marriage benefits including, but not limited to, federal tax exemptions, health coverage, immigration rights and Social Security benefits to opposite sex couples. After a November 2008 ballot initiative passed, Proposition 8 became a constitutional amendment to the California state constitution. The proposition overturned the May 2008 state Supreme Court decision that same sex couples have the right to marry.
The Supreme Court must make a decision regarding the federal understanding of marriage. Marriage is a sanctified institution that necessarily has a strict intention, purpose, meaning and social significance. The question is whether the marriage of same-sex couples fits into this mold. I believe they do.
Some Americans feel the Supreme Court has too much power and should not be making a decision regarding such a significant issue. Rather, it should be made through more democratic means. Recognizing this, Justice Sonia Sotomayor asked whether it may be too early for the court to be making such a decision.
“We let issues perk, and so we let racial segregation perk for fifty years from 1898 to 1954,” Sotomayor said. The Supreme Court would prefer to weasel its way out of this decision and leave it up to legislators and a shift in popular opinion. But it’s too late – the court has already granted a writ of certiorari, or judicial review.
There is reason to believe that opinions regarding this issue have shifted much more rapidly than in the case of racial segregation. Nine states have already authorized same sex marriage. A March CBS poll found that 53 percent of Americans support same-sex marriage while only 39 percent oppose it. In 2006, a comparable Princeton Research Survey found that only 39 percent of Americans supported it while 51 percent of Americans opposed it.
Leaving public opinion aside, appellate attorney Charles J. Cooper, in favor of Prop 8, argued on the basis that marriage has the intention of procreation. Justice Elena Kagan hammered him by asking whether the federal government should refuse marriage licenses to infertile couples over the age of 55. Cooper replied that it should not. Justice Kagan through this argument sharply removed the federal understanding of the intention of marriage from any Christian understanding. This is a decisive swipe at the rhetorical string of argument used by the defenders of Proposition 8. The purpose of marriage is not procreation.
Another distinction provoked by conservative Chief Justice John G. Roberts was that of the label of marriage. Chief Justice Roberts claimed that California had taken measures to ensure equal rights to same-sex couples engaged in civil unions. Liberal Lawyer Theodore B. Olson argued that the label was “critical.” Justice Roberts agreed: “Sure. If you tell — if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that’s it seems to me what the — what supporters of Proposition 8 are saying here. You’re — all you’re interested in is the label and you insist on changing the definition of the label.”
This label of marriage for both proponents and dissenters of same-sex marriage is very important. For same-sex couples seeking to be married and their supporters, a civil union with all the benefits of marriage lacks the dignity, distinction and grace that comes with the title that they passionately believe they deserve. For some conservative proponents of traditional marriage, the inclusion of same-sex couples cheapens the title, making marriage seem less sanctified.
The nature of the American institution of marriage is what is at stake in this Supreme Court decision. Do same-sex couples fit into the American understanding of marriage? Marriage is clearly difficult to define, I know that one hundred years ago the American institution did not include interracial couples, and looking back that seems to be a clear injustice. Today the debate concerns same-sex couples. It seems that public opinion surrounding this issue is quickly shifting, but where does it go from here? Should marriage include three or more parties? There is a logical reason that an adult cannot marry someone under a certain age. Surely that should not be on the table. The sanctity of marriage is an important issue to be considered in this debate, but I am optimistic that The Supreme Court will find same-sex marriage constitutional and find itself on the right side of history.
