THE BLOG
12/11/2012 09:21 am ET Updated Feb 10, 2013

It's Time for Justice Kennedy to Make History

In 2007, two women, Edith Windsor and Thea Clara Spyer, got married in Canada. Two years later, Ms. Spyer died, leaving all her property to her spouse, Ms. Windsor. Under the Defense of Marriage Act of 1996, which says the federal government does not recognize legal same-sex marriages, the Internal Revenue Service was unable to treat Ms. Windsor as a surviving spouse, as would happen with any opposite-sex couple. She faces an estate tax bill of $360,000.

In United States v. Windsor, and a separate case challenging California's ban on same-sex marriage, the Supreme Court will finally weigh in on an issue that has, in recent years, stirred a viscous national debate. In 2011, a majority of Americans supported same-sex marriage for the first time in history, and nine states currently recognize gay couples.

As a matter of Constitutional law, you don't need an Ivy League degree to come to a reasonable conclusion on the matter. Section 1 of the 14th Amendment -- the so-called Equal Protection Clause -- states that no personal shall be denied "equal protection of the laws." The Defense of Marriage Act, or any law banning the same-sex marriage, must by definition treat different people differently under the law. It's almost as if the Fourteenth Amendment was written to decide this case.

Philosophically speaking, it's equally hard to defend marriage as only between a man and a woman. In 2006, Mitt Romney made the most popular argument against allowing same-sex marriage: "The primary purpose of marriage," he argued, "is the creation and the development of the next generation."

For all you married people out there, do you recall ever signing an agreement that you would have children? If marriage is all about procreation -- in Romney's words, the "primary" purpose -- why are you allowed to marry and never have children? Would Romney follow his own line of reasoning and outlaw those types of marriages?

Of course not, because, in reality, marriage has come to be known as a compassionate bond between two people -- a healthy, stable commitment that we can all look favorably upon. To suggest that same-sex couples are incapable of such commitments, as opponents of gay marriage inherently argue, is simply inaccurate. And for heterosexual couples -- who run over a 40 percent chance of getting divorced (or Newt Gingrich, who has had more wives than cats have lives) -- to define what constitutes a healthy relationship is simply outrageous.

Ultimately, however, neither public opinion nor common sense will ultimately make the decision. Instead, it will be the ever-so-powerful swing-man on the Supreme Court: Anthony Kennedy. Ten years ago, in Lawrence v. Texas, Kennedy wrote the majority opinion striking down anti-sodomy laws meant to curtail the sexual activity of gays throughout the country. He also wrote the majority opinion a decade earlier in Romer v. Evans, which invalidated an amendment to the Colorado Constitution that would have prevented the passage of laws protecting homosexuals and bisexuals.

In both cases, Kennedy cited the Fourteenth Amendment as the deciding factor. He opened his opinion in Romer by quoting Justice John M. Harlan, the lone dissenter in the famous Plessy v. Ferguson case that established the infamous "separate but equal" doctrine: The Constitution, he wrote, "neither knows nor tolerates classes among citizens."

It would take 50 years before the Supreme Court finally agreed with Justice Harlan, and parted ways with an America defined by segregation and exclusion. There's still one more step to take to solidify that fundamental principle, and Justice Kennedy can be the one to engrave it in history.