Court should again stand for equality

Editorial

Backers of same- sex marriage brought their persuasive arguments to the U. S. Supreme Court this week, culminating years of social progress and legal maneuvering to reach this critical point.

The court will not stop the movement toward marriage equality even if it fails to find — though it’s obvious to us — that the Constitution guarantees equal rights to all. The wave of acceptance for same- sex unions and the legal rights marriage entails grows ever stronger; younger generations increasingly see gay marriage as — What’s the big deal?

But if the four conservative justices win the eternal swing- vote of Justice Anthony Kennedy and form a majority to reject the concept of equal treatment, they will set back the cause, stoking rather than quenching the fires of prejudice and nurturing conflict rather than acceptance.

Just as this country evolved to acknowledge that African- Americans should not be slaves, that women should be allowed to vote, that all races should have equal opportunity to vote and to an education, and that couples should be allowed to marry even if their skin is not the same color, it’s time to take the next step. The Supreme Court can make that step far less painful by declaring marriage rights the law of the land.

It’s significant that the NAACP has joined the argument for equal treatment. Imagine if the courts in the 20th century had said it was up to individual states whether to provide “separate but equal” institutions and opportunities.

National support for gay marriage has more than doubled in less than two decades to a solid majority today. An estimated 780,000 Americans are now in same- sex marriages, according to the latest Gallup Poll. Our country has evolved.

Until the high court issues its decision, probably in June, defenders and opponents of gay marriage will parse and re- parse Kennedy’s words, past and recent, looking for clues of his thinking.

A Reagan appointment now in his 25th year on the high court, Kennedy wrote the 2003 decision, Lawrence v. Texas, overturning sodomy laws that targeted gay men. He authored the 2013 ruling, U. S. v. Windsor, that struck down the Defense of Marriage Act’s ban on federal benefits for samesex couples.

In that case, Kennedy wrote that DOMA “demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify.”

But Kennedy remains a defender of state’s rights, a core element of the argument for the status quo. He might adopt a fall- back position, refusing to afford gay marriage constitutional protection, but requiring states to recognize unions performed where they are legal. That would be better than rejecting the whole concept, but it would perpetuate discrimination and legitimize prejudice.

The issue before the court is not really about gay rights. It’s about the right of all Americans to live in a society that accepts their differences and affords equal rights under inheritance and other laws intrinsically tied to legal marriage.

We hope that’s how Kennedy sees it.