DOMA and Prop 8 Decision: Why SCOTUS Shouldn't Leave the Gay Marriage Issue to the States


The Supreme Court heard oral arguments on two cases involving gay and lesbian marriage. Some experts believe that based on the questioning of the justices the court may be reticent, if not reluctant to rule broadly and repeal the Defense of Marriage Act. They feel the court may send it back to the states. That would be a mistake. When left to their own devices too many states have shown their preference to remain separate, discriminatory and bigoted.

Same sex couples should not have to live under separate but equal laws. History has shown that separate is never equal. They should not have to live in a bifurcated environment where liberty is fully enjoyed in one jurisdiction and fully denied in another. The history of civil rights in this country proves that the states simply move too slowly, if at all towards full protection for all of its citizens.

In 1777, Vermont became the first state to ban slavery in its constitution. By 1804 anti-slavery laws or constitutional amendments existed for every state north of the Ohio River and the Mason-Dixon Line. However, it took another 60 years and a war before slavery was abolished throughout the United States.

Separate but equal became the preference of many states beginning with Tennessee in 1881. Separate but equal remained a state's right until it was overturned by Brown v Board of Education in 1954 and wasn't fully eradicated until eighty years later with the passage of the Civil Rights Act of 1964.

In 1780, Pennsylvania became the first state to allow interracial marriages. However the ban on interracial marriages remained the law in many states until 1967, when the Supreme Court struck it down in Loving v Virginia. At the time, 16 states still had miscegenation laws on the books.

In 1962, Illinois became the first state to remove criminal penalties for consensual sodomy from its criminal code. But it wasn't until Lawrence v Texas outlawed sodomy laws in 2003 that sodomy laws were prohibited in the remaining 14 states.

The Woman's Suffrage Movement can be traced back to the beginning of the country, but its official start began at Seneca Falls in 1848. It took 70 years before women were allowed to vote in all states. California, which is now the most liberal state in the country, did not grant women's suffrage until 1911 and New York adopted it in 1917.

National Journal columnist Ronald Brownstein wrote, "the arc of American history bends irreversibly toward inclusion of previously marginalized groups, which means that greater equality for gays is inevitable. But the justices are waiting for a cavalry that won't arrive if they are hoping that the states will establish a common set of rules for same-sex marriage before the Court itself must act."

Civil rights and equal protection are not something that should be implemented in a state-by-state piecemeal fashion. It should be something that is universally accepted and mandated in all the states. I can think of no better example of when the court should overrule the states than when it comes to ensuring equal protection under the law.