The U.S. Supreme Court heard arguments Tuesday in a case widely expected to decide a great civil rights issue of this century: what the Constitution demands on same-sex marriage. The justices took an incrementalist approach the last time they considered a same-sex marriage case, ruling in favor of equal treatment for gay men and lesbians but stopping short of striking down state-level bans on same-sex marriage across the country. The court is now being asked to finish the job, ruling that such marriage restrictions are fundamentally at odds with the Constitution’s guarantees.
We understand the caution the court has exercised. Even staunch supporters of same-sex marriage worry that a ruling perceived to impose a view on wide parts of the country that will not accept it could harm the cause of equality, stoking culture wars rather than pointing the way toward social acceptance. But this position has always been, at best, an argument for stopping at a moral way station before reaching the inevitable conclusion: Gay men and lesbians deserve dignity and respect under the law, and the principles embedded in the 14th Amendment require this.
Both principled and practical considerations now argue for the court to travel to that final destination. The justices already have allowed a wave of same-sex marriages to proceed in dozens of states; as lower-court judges have scrapped ban after ban over the past year and a half, state officials have had to perform same-sex marriages consistent with those rulings. The justices refused to halt that process and in so doing created thousands of facts on the ground — real, live married men and women officially committed to one another — that should not be written off as legal aberrations. And the more same-sex marriage becomes routine, the faster arguments against it melt away.
If the court strikes down the nation’s same-sex marriage bans, what will its reasoning be? Under the 14th Amendment’s equal protection clause, discriminatory government policies generally must have a rational justification. This is not a difficult standard to meet, but supporters of prohibition nevertheless have failed to come up with anything plausible. The court could leave it at that, or it could insist that cases involving state discrimination against gay men and lesbians deserve special care, demanding that the government meet a higher standard to apply any policy that treats them differently from other Americans.
Either rationale would lead to the same result. But the court must think broadly about the legal status of gay men and lesbians generally. The 14th Amendment demands that the government have exceptional reasons to discriminate against historically targeted minorities. Gay men and lesbians certainly qualify for that sort of consideration in this and future cases.
FROM AN EDITORIAL IN THE WASHINGTON POST