Last year, as the Supreme Court was considering cases on both Proposition 8 and the Defense of Marriage Act, this page urged the justices to issue a ruling making it clear that state bans on same-sex marriage violated the Constitution. Instead, the justices handed down two decisions that, while they advanced the cause, stopped short of what should have been a resounding affirmation of marriage equality. If they thought they could delay a definitive ruling for a few more years, they were probably mistaken.
We don't minimize the importance of the court's decision in June to strike down a provision of the Defense of Marriage Act that defined marriage for federal purposes as the union of one man and one woman. In welcoming that ruling, we expressed the hope that the decision would have a ripple effect in lower courts — and it has. Federal district judges have struck down bans on same-sex marriage in Utah and Oklahoma.
The problem is that Justice Anthony M. Kennedy, who wrote the majority opinion in the DOMA case, did not explicitly address the constitutionality of laws against same-sex marriage, even as he eloquently condemned Congress for demeaning married same-sex couples. In a dissent, Chief Justice John G. Roberts Jr. seized on that point, and quoted from language in Kennedy's opinion that noted the traditional authority of states to "define the marital relation."