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For gay rights, a historic opportunity

The Supreme Court should rule broadly and strike down California's Proposition 8 and the federal Defense of Marriage Act.

March 26, 2013|By the Los Angeles Times editorial board

Any of these outcomes would be preferable to an endorsement of Proposition 8 by the court, a result that would be a disastrous defeat for the cause of marriage equality. Still, we believe the justices should squarely address the issue of whether a state may deprive same-sex couples of the right to civil marriage. They could do that by concluding that there is no "rational basis" for that exclusion. Alternatively, they could accept the persuasive argument made by Boies and Olson and by the Obama administration that legal classifications discriminating against gays must be subjected to "heightened scrutiny" — meaning that Proposition 8 would have to be substantially related to an important governmental objective.

The arguments for the initiative offered by its supporters satisfy neither legal standard. In their brief, Proposition 8 proponents argue that it furthers the "critical societal function" of creating and nurturing the next generation and also is designed to prevent the evils of "unintended pregnancies outside of marriage." But withholding the status of marriage from same-sex couples doesn't interfere with the conception, birth or upbringing of children. Nor does the existence of same-sex marriage make heterosexual couples any less likely to marry before procreating. (The proponents' brief seems to concede as much, declaring unconvincingly that the possibility that same-sex marriage might undermine traditional marriage "need not be shown in order to uphold Proposition 8.")

The proponents make an additional argument, one that confronts the Supreme Court in every case in which it must decide whether to override the will of the people or their elected representatives. "Americans are engaged in an earnest and profound debate about the morality, legality and practicality of redefining marriage," the proponents argue, "and this court should permit this debate to continue as it should in a democratic society."

It's true (and heartening) that advocates of same-sex marriage have made headway in the political process, most recently in elections last year in which voters in Maine, Maryland and Washington state approved marriage equality. But the Constitution applies in every state, and the Supreme Court must ensure that its protections are available everywhere. It is not impermissible judicial activism for the court, in construing the Constitution, to take note of new social realities. One such reality is the growing recognition that same-sex couples can and do form relationships as stable and committed as those of heterosexual couples.

Time is on the side of same-sex marriage, as public attitudes are rapidly changing. But the court's responsibility is not to anticipate what the public might do. It is to decide what the Constitution commands. Sometimes, as the brief filed by Boies and Olson reminds the court, that means protecting minorities from "majoritarian prejudice and indifference."

If the court does its duty, Proposition 8 will fall, and so will the Defense of Marriage Act. And California, where this story began, will be free of an ugly blemish on its deserved reputation as a progressive and tolerant state.

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