This newspaper applauds the Supreme Court’s recent decision to hear arguments in two same-sex marriage cases — one on California’s Proposition 8, which bans such marriages, and one regarding the Defense of Marriage Act, which denies federal benefits to legally married same-sex couples.
Same-sex marriage has been percolating at the state level for several years, leading to a patchwork of laws that create more confusion than clarity. The court can undo that confusion by determining the constitutional parameters of this issue.
We urge the Supreme Court to affirm the right of gay couples to marry based upon the fundamental American ideal of equality before the law. It is critical that the court also make clear that such a ruling won’t require churches whose doctrines oppose same-sex marriage to perform such ceremonies.
Debating the reversal of centuries of views about the institution of marriage cannot be considered without upheaval, and we recognize that the notion of gays and lesbians marrying can divide families, friends and, especially, generations. But the growing support for same-sex marriage, including within families whose gay members have changed the way these unions are seen, makes the embrace of gay marriage less of a radical shift.
Polls show that American attitudes have shifted dramatically on the subject. Surveys by organizations such as Gallup reveal that half or more of Americans support the concept of gay marriage. Equality in marriage laws is particularly embraced by younger Americans, including some younger evangelicals.
Even leading conservatives favor gay marriage. Former Vice President Dick Cheney is among the most notable. So, too, is former Bush solicitor general Ted Olson, who will lead the team arguing in favor of the constitutionality of same-sex marriage.
Olson contends that the federal government lacks the right to deny gay couples the opportunity to marry. He also will argue that the ban denies gay couples the right to due process. As the Republican wrote in Newsweek, “This bedrock principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals and conservatives alike.”
We respect that some religious traditions see same-sex unions as an affront to their canons, scriptures and traditions. The First Amendment protects such places of worship from being compelled to conduct same-sex marriages. Additionally, the justices should take care to carve out strong and significant protections so that the institutions’ religious liberties, for instance their tax-exempt status, are not circumscribed.
In 2004, this newspaper opposed a constitutional amendment banning gay marriage. We have backed efforts to outlaw discrimination against employees based on sexual orientation. Now, we believe that the Supreme Court should conclude that equality under the law includes the right of gay couples to wed.
What’s at stake before the Supreme Court is how a secular society should respond to the growing demand for same-sex marriage. That is where Olson’s arguments seem so persuasive. How can a secular government grant marriage rights to some but not others?