To the top

A landmark legal fight over same-sex marriage is now on track for a final decision by the U.S. Supreme Court. But the legal process is bound to be colored by changing public attitudes and even President Obama’s evolution from reticence to full support of full marriage rights.

In the latest chapter, the Ninth U.S. Circuit Appeals Court in San Francisco declined to review its decision that dumped a voter-approved ban on gay marriage. It was generally expected and is almost certain to kick the issue to the high court, which could rule a year from now.

But running alongside the legal process is another kind of progress: the public’s journey forward on gay rights. Proposition 8 passed by a slim margin in 2008, but numerous polls show the national mood has shifted steadily toward acceptance.

Last year, Obama instructed his administration to stop supporting the antigay Defense of Marriage Act. Last month, he went a step further and gave his unequivocal support to same-sex marriage.

The California case gives another reason to hope for full rights. The appeals court shaved down the argument being handed to the top justices. Instead of an overall declaration on same-sex marriage, the Supreme Court will be asked to decide whether it’s fair that Prop. 8 created two unequal classes: those permitted to marry before the measure passed and those denied afterward. The justices must not dodge the fundamental issue at stake: discrimination that lacks any rational basis.

The fight for marriage equality, while advancing, won’t be settled until the Supreme Court takes a firm stand for the constitutional principle of equal protection.