Times changeMar 27, 2013 By Steven R. Peck
If the Supreme Court doesn't validate same-sex marriage now, it delays the inevitable
The recent panel discussion at Central Wyoming College on same-sex marriage was timely, both for the general interest in the topic -- pro and con -- and for the oral arguments before the U.S. Supreme Court related to the federal government's Defense of Marriage Act.
Like it or not, "DOMA," as the law is abbreviated, is looking pretty wobbly at the moment. The federal government clearly doesn't like it anymore, and the U.S. Supreme Court might strike it down.
Any law is only as strong as the people enforcing it, and the Obama administration decided some time ago that it would only go through the motions of enforcing the law which, among other things, applies the term "the legal union of one man and one woman" to the federal government's definition of marriage.
What the government decided not to do, however, was defend the law -- meaning that if someone wanted to sue the government over DOMA, then the government wouldn't try to stop it, nor even mount an argument in court.
That's exactly what is happening.
Oddly enough, that leaves the United States House of Representatives as the defending party in the lawsuit heard Wednesday at the Supreme Court, just one day after a related case challenging a ban on same-sex marriage in California came before the high bench.
The government's official policy may be enforcement, but it hasn't exactly taken a hard line in recent years. Several states have passed laws of their own making same-sex marriage legal, and the feds have not tried to stop it. Where DOMA does apply is when same-sex couples move to another state, where such unions don't have to be recognized legally, as well as whether certain federal benefits that apply to traditional married couples can be denied to same-sex couples who are legally married in their state of residence.
In many of its landmark rulings, the modern-day Supreme Court has been ahead of the public in its recognition of changing times. But the same-sex marriage cases may well reflect the opposite. This could be an occasion in which the court is scrambling to catch up to a dramatic tilt of public opinion away from intolerance of same-sex marriage and toward acceptance of it. That might not yet be the majority opinion in Wyoming, but it is a fact nationally.
Familiar lines are recognizable in the court's hearing. It appears likely that a close vote will decide these cases, no matter if the justices rule broadly or narrowly.
The court could decide to issue a sweeping constitutional defense of same-sex marriage under the U.S. Constitution. But the justices are just as likely to set the bar lower with this ruling and decide simply that this is a states-rights matter, as it did, essentially, 40 years ago with abortion.
That, however, probably would be delaying the inevitable. The court's job is not to respond to opinion polls or political squabbles, at least theoretically. But future court appointments, suggested by the president and approved by the Senate, are very much subject to both of those factors. Those nominations and confirmations will be made in the new climate of tolerance for same-sex marriage.
That's why things will change. One day -- apparently much sooner that anyone would have predicted even a few years ago -- it will be very difficult for a president to nominate a Supreme Court justice who thinks same-sex marriage ought to be illegal, and it will be even harder for the U.S. Senate to confirm such a judge.
Less than a decade ago, most Americans surveyed nationwide said they opposed same-sex marriage. Today the majority, if not necessarily embracing it, no longer objects to it.
Sooner or later, the Supreme Court probably won't be able to either.