The Swarm

Mix it up with The Bee's editorial board.

June 26, 2013
Editorial: An incomplete victory for equal rights

The U.S. Supreme Court bolstered the cause of same-sex marriage Wednesday, but sidestepped a chance to guarantee equal rights for all gay Americans.

Deciding on the narrowest of legal grounds, a 5-4 majority cleared the way for gay marriages to resume in California. The ruling did not, however, say anything about same-sex marriages in other states.

In a second highly anticipated ruling, a different 5-4 majority threw out a key section of the federal Defense of Marriage Act, the 1996 law that prevents same-sex couples from receiving federal benefits available to other married couples, including income tax advantages, immigration status and veterans' benefits.

While these decisions represent a major victory for gay Americans that we welcome, we wish the court had taken the opportunity to go further.

Justice Anthony Kennedy of Sacramento, writing for the majority, said DOMA violated the Constitution's equal protection clause for the federal government to treat gay couples - legally married in states that allow them to do so - differently than other married couples. But the ruling did not declare a constitutionally protected right for gay Americans to marry.

The prospect of gay Americans having different rights depending where they live is fundamentally unfair. The forward march on gay marriage will be slower. Yet, the state-by-state approach may be more democratic than a judicial edict.

Make no mistake, the tide of history is moving toward equal marriage rights. Just since the Supreme Court heard oral arguments in the cases in March, legislatures in three states - Delaware, Minnesota and Rhode Island - have legalized same-sex marriage. That brings to 12 the number of states with gay marriage, along with the District of Columbia. They include Maine, Maryland and Washington state, which in November became the first states to approve gay marriage through popular vote.

Poll after poll demonstrates growing acceptance by the public; in a Pew Research Center survey this month, 72 percent of Americans, even those who oppose the idea, said they believe universal gay marriage is inevitable.

Twenty-nine states, however, still ban gay marriage in their constitutions. The high court's rulings leave those in place.

In the California case, the majority of justices said that gay marriage foes did not have the legal standing to defend Proposition 8, the 2008 ballot measure that banned gay marriage. Top state officials, including Gov. Jerry Brown and Attorney General Kamala Harris, had refused to support Prop. 8.

The high court's decision, written by Chief Justice John Roberts Jr., leaves intact U.S. District Judge Vaughn Walker's 2010 opinion, which said that Prop. 8 violated California's Constitution and blocked the measure from taking effect.

It will probably be several weeks before same-sex couples can marry again in California -- unless further delayed by another legal challenge by gay marriage opponents. About 18,000 gay couples married in California between the time the state Supreme Court recognized gay marriage and Prop. 8 passed.

The court majority chose the most limited of the wide array of possible rulings. The Obama administration, for instance, suggested allowing same-sex marriage in California and the seven other states that already provide civil unions or domestic partnerships.

As several justices hinted during the oral arguments in March, the majority decided it did not want to move too far, too quickly on such a culturally controversial issue as gay marriage.

There's a history lesson: In legalizing abortion with the landmark Roe v. Wade decision in 1973, the high court went further than many Americans were comfortable with, spawning highly divisive abortion politics that exists to this day.

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About The Swarm

The Swarm is written by members of The Sacramento Bee's editorial board. They meet daily and are separate from the newsroom. Views included here are those of individual writers, and do not necessarily reflect those of a majority of the board or the positions expressed in The Bee's editorials.

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