Last week, the Supreme Court heard arguments in two separate cases dealing with gay marriage.
These cases dealt with the constitutionality of the federal government’s Defense of Marriage Act (DOMA) and California’s Prop 8, both pieces of legislation that outlaw gay marriage.
The decisions in these cases will be announced in June, and while it seems unlikely that either side will be claiming total victory, the Supreme Court now has a chance to move toward universal marriage equality.
Fundamentally, the Supreme Court will be deciding if either DOMA or Prop 8 are constitutional. This decision asks the question if gay marriage is a protected right under the 14th Amendment’s equal protection clause.
The court will most likely be using the rational basis of review to decide these cases, or the easiest standard for the respective governments to uphold their laws.
This means that the state must prove that it has a legitimate interest that the questioned law is trying to protect, and there must be a justifiable connection between the law and that interest.
Rational basis was first deemed to be the appropriate standard for cases concerning laws dealing with sexual orientation in another Supreme Court decision, Romer v. Evans.
There is the argument that marriage is a religious construct and civil unions are the appropriate avenue for homosexual couples.
First, if marriage is only a religious institution, then how do we reconcile the acceptance of marriages performed in all faiths? Or civil ceremonies? All married heterosexual couples are considered married no matter what faith, if any, they were married in.
Also, if that’s the case, there are numerous faiths and clergy that accept and are supportive of gay marriage. Civil unions are still not marriage.
To borrow an apt phrase from the landmark case, Brown v. Board of Education, separate is not equal, and it never will be. Equality is equal treatment with no caveats and exceptions.
The sanctity of marriage argument is also moot. States aren’t especially troubled about the sanctity of marriage when Britney Spears gets married for 55 hours or Kim Kardashian for 72 days.
In fact, Las Vegas has built an entire industry around people getting hopped up, making bad decisions and entering into marriages that are ill-advised and typically short-lived.
If sanctity of marriage was a legitimate state interest, it would be much harder to get divorced.
Proponents of DOMA and Prop 8 argued in oral arguments that marriage was a tradition with a long history and that legalized gay marriage would be an affront to that history.
Marriage has evolved right along with society and even heterosexual relationships of today look nothing like that of hundreds of years ago.
Instead of young teenagers being bartered for cows and goats in arranged marriages, marriage is now a personal choice entered into by two consenting adults.
The final argument that was employed in both rounds of oral arguments was the argument about child welfare and familial integrity. This argument also doesn’t stand up to reasoning.
The sole purpose of marriage isn’t procreation.
If it was, older and infertile couples would be prohibited from marrying.
If the function of marriage is to ensure that children are brought into stable environments, there would be laws against children being born out of wedlock and laws against bringing children into unstable heterosexual homes.
There is no legal justification to keep gay marriage illegal any more. The state has no rational interest in preventing it.
The outcome of these new cases before the Supreme Court is likely to advance the cause of marriage equality without providing broad and sweeping reform.
However, a step forward, even a small step, is better than a step backward.
For proponents of marriage equality, they’ll have to content themselves with the old adage that Rome was not built in a day.
Brittany Sharkey is a third-year law student from Oceanside, Calif. She graduated from NYU in 2010 with a degree in politics. Follow her on Twitter @brittanysharkey.
