People make their way inside into the Supreme Court in Washington, Tuesday, March 26, 2013, for the court's hearing on Californias voter approved ban on same-sex marriage, Proposition 8. (AP Photo/Pablo Martinez Monsivais)
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Updated: April 28, 2013 6:32AM
For on-the-fence lawmakers in Illinois, there is but one take-away from Tuesday’s U.S. Supreme arguments on same-sex marriage:
In the name of justice, think globally but act locally.
It appears unlikely that the justices will establish a constitutional right to gay marriage, granting even greater urgency to the effort to establish the right here, right now in Illinois.
In the first day of arguments on two different gay marriage cases, the justices indicated a reluctance to move swiftly to issue a ruling on whether gay and lesbian couples have a constitutional right to marry and a reluctance to even rule on the case at all.
The reluctance, though, appeared to be based not on overwhelming doubts among the majority of the court on the constitutional right itself. The questioning with respect to California’s Proposition 8 ban on same-sex marriage, instead, centered on whether the court should have accepted the case in the first place, whether the opponents of same-sex marriage have standing and whether the court risks getting too far ahead of the public debate on the issue of gay marriage. The court is expected to rule later this year.
But there was no shortage of sympathy for the very real consequences of treating some couples as second class.
“There’s some 40,000 children in California that live with same-sex parents,” Justice Anthony M. Kennedy said. “They want their parents to have full recognition and full status.”
Proponents of gay marriage in Illinois seized on the court’s hesitation to urge passage of a same-sex marriage bill in Illinois. The bill has passed the state Senate but faces an uncertain future in the House.
“Illinois has a moral obligation to couples that are denied respect for their relationships every day,” Camilla Taylor, National Marriage Project Director for Lambda Legal, said after sitting through the oral arguments in Washington. “There is a possibility that the court won’t reach the merits in [the California case]. That doesn’t relieve the Illinois Legislature of its obligation to act and act now.”
We couldn’t agree more.
And Wednesday’s case will likely add fuel to the fire. The court will hear arguments on the federal Defense of Marriage Act, the 1996 law that defines marriage as a heterosexual union. The practical effect is to deny legally married gay couples more than 1,000 federal benefits, such as the right to file joint tax returns and Social Security survivors’ benefits.
There’s a good chance the court will strike down DOMA. That’s great news for couples in the nine states that allow gay marriage but a setback for couples in states like Illinois, which allow only civil unions. Those couples still would be denied federal rights, laying bare the inferiority of a civil union. Were Illinois to allow gay marriage, we could spare the committed gay couples in Illinois that further indignity.
Illinois, then, can help lead the national movement that appears all but certain to end with gay marriage across this country.
In just a few short years, the majority of Americans have come round to backing same-sex marriage and, undoubtedly, so too will the U.S. Supreme Court one day, if necessary.
The court may not be ready for a sweeping decision on marriage rights today, preferring, as is its long-standing practice, to take incremental steps and to give the nation time to digest a changing public opinion.
But the constitutionality of this right — the Constitution’s guarantee that laws will treat every American equally — isn’t seriously in doubt.