The case for same-sex marriage has made it to the Supreme Court, thanks in part to a challenge on behalf of two New York women who were married in Canada five years ago. There’s no telling how the court will rule, but if it is true that the justices pay attention to election results, well, there certainly is reason for optimism.
The court will hear arguments on two levels. A California case, argued by the left-right legal team of David Boies and Theodore Olson, takes aim at the Golden State’s outright ban on same-sex marriage, arguing that it violates the U.S. constitution’s guarantee of equal treatment under the law.
The New York case is somewhat narrower, but still indicative of the sort of discrimination that same-sex couples routinely face. A woman named Edith Windsor inherited property from the woman she married in Canada, but the federal Defense of Marriage Act does not allow her the same inheritance rights granted to heterosexual marriage partners. Ms. Windsor was handed a tax bill of $360,000—a bill that she would not have had to pay if she were married to a man.
The Windsor case illustrates, in a very practical way, how federal policies discriminate against same-sex couples. Federal law bestows special benefits on heterosexual married couples in a way that clearly discriminates against same-sex partners. Those benefits ought to be free of any and all bias.
Nobody will ever accuse the Roberts court of following in the ideological footsteps of, say, the Warren court. But there is reason to hope that the justices will deliver a victory for the civil right to marry. After all, Justice Anthony Kennedy, an important swing vote, once described anti-gay rights measures in Colorado as “born of animosity”—just as the Defense of Marriage Act surely was.
The Constitution, Justice Kennedy wrote in 1996, “prohibits laws singling out a certain class of citizens for disfavored legal status or general hardships.”
If the justice still believes that, victory may well be at hand.