Abraham Lincoln believed that when the authors of the Declaration of Independence spoke of equality, “they did not mean to assert the obvious untruth, that all were then actually enjoying that equality . . . They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.”
The Supreme Court recently agreed to consider the constitutionality of the Defense of Marriage Act and California’s Proposition 8. Argument in both cases is expected around the end of March 2013, and decisions are expected around the end of June 2013. Although it is possible that the Court will decide both cases without answering any substantive questions about same- sex marriage, it is more likely that we will have a ruling on the same-sex marriage issue in 2013, one way or the other.
In 2010, in one of the Facebook posts that inspired the creation of this blog, I predicted that the Proposition 8 issue would end up in front of the Supreme Court, and that a 5-4 majority of the Court would hold that there is a fundamental right to same-sex marriage in the Constitution, making same-sex marriage legal in all 50 states. Much has happened since I wrote that post, but I stand by that prediction today.
This is the first of a series of posts about same-sex marriage that I will write between now and next summer, explaining the legal issues involved, the arguments on both sides and the opinions that each of the justices have expressed on the issue.
There are some who would argue that the same-sex marriage issue should not even be in front of the Court. But I think that to make such an argument, one would have to disagree with Lincoln’s quote. Lincoln believed that historical injustice could not excuse present injustice, and he saw that the framers were of the same mind.
A minority group—LGBTQ individuals—suffers from inequality. The Constitution guarantees due process of law and the equal protection of the laws to all people. In fact, those clauses were added to the Constitution in response to states refusing to grant rights to minorities. The drafters of those clauses wanted the Supreme Court to have the power to guarantee minority rights nationwide.
So, while reasonable arguments can be made on both sides regarding the proper outcome of the cases, I think it is difficult to credibly argue that the issues should not be before the Supreme Court at all.