From Seneca to Selma to SCOTUS
The High Court should strike down Proposition 8 and pave a path to gay marriage
What has three letters, one syllable, and a history of being excluded from every inaugural address before this January? “Gay.”
President Obama broke a longstanding taboo by inserting the word into his speech to the nation after his second public swearing-in. “If we are truly all created equal,” the president continued, “then surely the love we commit to one another must be equal as well.” Obama may have a penchant for talking big and acting small, but his administration filed a brief last Thursday that added a little bite to the presidential bark: The White House will fight for marriage equality and against California’s Proposition 8, the state’s ban on same-sex marriage, in the Supreme Court this month.
The Obama administration argues that laws that treat gay citizens differently from straight citizens violate the Constitution’s equal protection clause. As a result, according to the White House, those laws should be subject to a heightened form of review known as strict scrutiny. And in order to pass strict scrutiny, a law must serve a compelling government interest. But what compelling reason, asks the White House, could California possibly have for denying homosexual couples the right to marry when those couples receive the same privileges and benefits as do heterosexual couples through civil unions?
The White House points to seven states whose civil union provisions mirror those of California: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island, and its argument applies only to those states. Critics complain that the White House has not gone far enough, that the Obama administration should ask the Court to acknowledge a constitutional right to gay marriage. But today’s generally conservative Court surely will not take so dramatic a step. The administration recognizes this truth and has offered the Court—or, more specifically, swing-vote Justice Anthony M. Kennedy—another possible option for a ruling.
That ruling would still mark a major advance for gay rights. Strict scrutiny is a stringent test, difficult for any law to pass. If the Court sided with the federal government, all laws that discriminated based on sexual orientation would undergo such heightened review, making it close to impossible for them to stand. What’s more, one small step today would pave the way for a bigger leap tomorrow.
Tomorrow could not come soon enough. When our Founding Fathers wrote the Constitution in the voice of “We the People,” that people may have included only rich, white, straight males. And when slaveholder Thomas Jefferson penned the Declaration of Independence, the “truth” that “all men are created equal” may not always have been entirely “self-evident.” But as time has passed, so has some of our prejudice. The crusade for gay rights is another stage of our nation’s journey toward fair treatment under the law. Before the civil rights movement and the women’s rights movement, equality in the United States existed only in theory. For decades, we have been fighting to turn it into reality.
We’re not there yet. But every moment, support for equal rights for same-sex couples increases. In October, a Pew poll revealed that 49 percent of Americans think gay marriage should be legal. In 2008, only 39 percent were in favor. And a Gallup poll from November showed that 73 percent of the people between 18 and 29 years old want gays and lesbians to be allowed to marry legally.
Young people aren’t the only ones exhibiting a shifting attitude toward gay marriage. Over 200 companies, including big-league players like Citigroup and Apple, have signed onto a brief in another Supreme Court case arguing against the constitutionality of the Defense of Marriage Act. Even a group of prominent Republicans have spoken out against Proposition 8.
One day, “liberty and justice for all” will be more than just a mindless refrain schoolchildren chant as they raise the star-spangled banner every morning, before turning a blind eye when they see their peers mercilessly ostracized and bullied, lampooned on Facebook, and stuffed into lockers in the halls as punishment for the crime of being different. The rising generation, corporate organizations, and members of the conservative GOP have recognized the need for this day to come as soon as possible. The Supreme Court should recognize it, too.
Molly L. Roberts ’16, a Crimson editorial writer, lives in Holworthy Hall. Her column appears on alternate Thursdays.