THE BLOG
03/26/2013 02:41 pm ET Updated Feb 02, 2016

Note to SCOTUS on Marriage: Do Not Let Injustice Percolate

I have just come from the Supreme Court arguments in the California Proposition 8 marriage equality case. Technical issues aside, what was before the court is whether it is constitutional for the voters of California to strip or deny some of its citizens of a fundamental right -- that is, the right to seek and obtain a civil marriage license on the same basis as opposite gender couples.

What I saw today was a court that seemed caught between a genuine desire to render a clean, crisp constitutional analysis of this matter (on either side of the issue) and one that feared to do so would be moving too quickly for history. Some talked of the newness of gay marriage and the term "social experiment" was used more than once. At one point Justice Sotomayer -- almost pondering -- asked counsel for the defendants (the anti folks) whether this should just left to percolate like other tough social issues, like race. After all, there were 56 years between Plessy v. Ferguson (the case that brought us separate but equal in 1898) and its correction, Brown v. Board of Education in 1954 (separate is never equal).

None of the justices seemed to be buying a parsed and, at times, tortured state by state analysis. Either marriage is fundamental right for all citizens under the constitution, or it is not. No one seemed to be buying the arguments proffered by the Solicitor General that seemed to unwittingly shore up the idea that there may be legitimate state reasons for denying marriages licenses to gay couples -- we just haven't seen those arguments emerge yet.

Caution seemed to be in the air and almost eclipse the rigor the constitutional examination requires -- even to the point where the Court spent a great deal of time on an important but technical issue known as "standing" -- that is, whether defendants were properly before the court at all.

It is my hope that the court will find the courage to rule this year on a constitutional conclusion that is inevitable --- and not wait another 50 for justice. Individual gay people and those they come to love are not social experiments, they are people. What is right constitutionally today will be right in a year or a decade or a lifetime. At one point Justice Scalia asked of Ted Olson: "When did gay marriage become constitutional?" The answer is: from the beginning of time, or at least from the beginning of our constitution. We are just now coming into consciousness about the fact LGBT people and our constant presence in this nation.

We know from other nations that have had equal marriage in place for years that there are no grim reapers waiting in the wings to cut off or mar traditional marriage. The only harm will be to gay people, their partners and children. Nothing comes of allowing injustice to fester. These are real lives that deserve a real constitutional answer. Don't take the technical dodge. Do not let injustice percolate.

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