EDITORIAL

Supreme Court should recognize same-sex marriage

Editorial board
The Republic | azcentral.com
Gay rights activists gather outside the U.S. Supreme Court building in 2013
  • The Supreme Court needs to say that same-sex marriage is a question of fundamental fairness
  • There is no good reason to deny same-sex couples the rights and privileges that heterosexual couples enjoy
  • The question before the court is about the basic constitutional rights of your relatives%2C neighbors%2C co-workers and friends

The arguments are over. Now the odds makers will parse the transcripts and weigh the comments of the nine Supreme Court justices who will decide whether same-sex couples have a constitutional right to marry.

It remains what it has always been: a question of fundamental fairness. There is no good reason to deny same-sex couples the rights and privileges that heterosexual couples enjoy.

As Mary Bonauto, attorney for same-sex couples told the court, state laws banning marriage equality "encompass moral judgments and stereotypes about gay people."

Those laws don't reflect the principles of equal treatment and due process guaranteed to all under the 14th amendment to the Constitution. And now that so many gay and lesbian couples have married, the court would be turning back the clock to decide otherwise.

The court allowed extra time for arguments over an issue that some think has moved a bit too fast. That mattered to Justice Anthony Kennedy, who is considered a swing vote, though his past votes suggest support for same-sex marriage.

Kennedy pointed out that heterosexual marriage "has been with us for millennia. It's very difficult for the court to say, 'Oh, we know better.' " The debate over same-sex marriage is a little over a decade old, he noted.

Yet Kennedy also asked attorney John Bursch, who was arguing in favor of allowing states to ban same-sex marriage, how opening up the institution could harm heterosexual unions.

Bursch said it would weaken the procreation-centered view of marriage.

The courtroom erupted in laughter when Justice Ruth Bader Ginsburg asked about the 70-year-old heterosexual couple that wants to get married.

Ginsburg pointed out there have been fundamental changes in our understanding of modern marriage, which is no longer considered a "dominant and subordinate" relationship. She also made the point that allowing same-sex marriage is "not taking away anything from heterosexual couples."

Justice Sonia Sotomayor and Justice Elena Kagan echoed that sentiment.

Justice Stephen G. Breyer said, "marriage is open to vast numbers of people." Same-sex couples cannot participate in that "fundamental liberty. And so we ask why," he said.

These four liberal justices are expected to vote in favor of same-sex marriage. Conservative Justices Antonin Scalia, Clarence Thomas and Samuel Alito are likely to support upholding the state bans.

Chief Justice John Roberts said same-sex couples seeking to marry are "seeking to change what the institution is." Yet some court watchers believe Roberts might vote in favor of same-sex marriage, particularly if his vote would be a sixth, rather than a deciding vote. As part of the majority, he would determine who writes the opinion.

But Kennedy is expected to be the key.

Kennedy wrote the 2013 decision that struck down part of the federal law that defined marriage as between a man and a woman, opening up federal benefits to same-sex couples.

Since then, appeals courts across the nation have struck down bans on same-sex marriage. It is now legal in three dozen states and Washington, D.C. But in November, the Sixth Circuit Court upheld bans in Kentucky, Michigan, Ohio and Tennessee, saying the decision belonged with legislatures or voters, not the courts.

It was able to do so because the Supreme Court, while declining to stop same-sex marriages, did not determine whether state bans violate the U.S. Constitution.

That's the question the justices will answer. The consolidated cases known collectively as Obergefell v Hodges have two parts. Is it constitutional for states to ban same-sex marriage? Do states have to recognize same-sex marriages performed in other states?

The answer is about the basic constitutional rights of people who may be your relatives, neighbors, co-workers and friends. That's why the first answer should be no, which makes the second question moot.