03/27/2013 05:12 pm ET Updated Mar 27, 2013

In Gay Marriage Cases, Supreme Court Should Hear The Sound Of A Dam Cracking

WASHINGTON -- We are watching a social revolution hit the Supreme Court. The only question is whether the justices slow it down a bit or accelerate it when they render their decisions.

After throwing out hints over two days of arguments, this is where the court appears to be on the question of gay marriage.

On the one hand, the justices seem reluctant to declare that there is a constitutional right for gay and lesbian couples to marry. But the majority also don't seem to think that the federal government has the right to discriminate against such marriages, as the 1996 Defense of Marriage Act (DOMA) does.

So if the court ends up making substantive rulings in the two cases (which is not certain), the result could be this initially: Same-sex marrieds, in states where such unions are recognized, would be entitled to the federal benefits and considerations they are now barred from receiving. But it would still be up to each state to decide on its own definition of marriage.

End of story? No, because the next phase of the equal protection argument is plain as day. If same-sex couples in one state can receive federal benefits that similar couples in another state cannot, then the states that refuse to recognize gay and lesbian marriage are wide open to an equal protection attack. And if same-sex couples are entitled to federal benefits in the state that permitted their marriage, can that same couple be denied those benefits if they move?

In theory, the court is only considering the federal aspects of DOMA, but it's easy to see that the practical legal effect is potentially far more sweeping than that.

Which, in turn, is why some justices, led by Justice Anthony Kennedy, may look for technical reasons to throw out both cases. The justices know that the revolution is advancing. The question is where they want to be in the line of march.

Social issues are always the most troublesome and fraught for the Supreme Court. They tend to involve not only sociological evidence and judgments, but moral and political ones.

Nearly 60 years after Brown v. Board of Education, the American people are essentially unanimous in their approval of its holding, which was that racially "separate but equal" institutions could never be equal in America and were therefore unconstitutional. The country then moved, in fits and starts, to a place in which it could elect and reelect a black president.

But 40 years after Roe v. Wade, the country remains divided on the court's holding, which was that women have a constitutionally based privacy right to abort a fetus, with almost no limit early in the pregnancy.

Roe is Roe because religious conservatives insist that the Supreme Court chose the pregnant woman's rights over the "right to life" of another "person." The clash they see creates the political and moral friction that keeps this issue alive.

But with Brown, and more generally in the realm of civil rights, it eventually became clear that guaranteeing full rights to African Americans did not diminish -- could not diminish -- the rights of others. In fact, freedom is not a finite thing. It's relational. No one can have it unless everybody can have it.

This week's marriage cases are far closer to the spirit of the civil rights cases. In the 21st century, we need more families, not fewer; we need more devoted parents with legal responsibilities, not fewer; and we want more people with settled roots, not fewer. Expanding these possibilities does nothing to diminish the sanctity or the success of those who choose "traditional" heterosexual marriage.

Would anyone argue that there is too much married and parental love in the world? Would anyone argue that an adoptive parent can't be as good as a biological one?

The answers to these and other questions in the same-sex marriage debate are obvious. The only real question is when the Supreme Court will muster the courage to state them.



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