03/27/2013 03:02 pm ET Updated May 27, 2013

Cowards on the Court

Supreme Court Justices Sotomayer, Ginsburg, Kagan, Breyer, Roberts, and Kennedy seem determined to rule on the issue of same-sex marriage on the narrowest legal grounds. During preliminary questioning in Hollingsworth v. Perry, Sotomayer, Ginsburg, Kagan, and Breyer, the center-liberal wing on the Supreme Court, focused on whether the plaintiffs had legal standing to actually bring the case to the federal court system. Justices Kennedy and Roberts, who constitute the courts conservative block, seemed to agree. Kennedy pondered, "I just wonder if the case was properly granted," while Roberts asked if the court had "ever allowed anything like that" in the past.

The current case, Hollingsworth v. Perry, grows out of the complex battle over same-sex marriages in the state of California. The California Supreme Court threw out a ban of same-sex marriages in 2008, however opponents of the decision were able to pass an amendment to the state constitution, known as Proposition 8, that limited marriage to relationships between men and women. However in 2010, a federal district court declared the ban an unconstitutional violation to the 14th amendment and this decision was upheld by the U.S. Court of Appeals for the Ninth District.

The lead plaintiff in the case is Kristin Perry, who was denied a marriage license because she and her partner, Sandra Stier, are a same-sex couple. The state of California refused to appeal the lower court decision so the defendants in the case, who want the lower court decision overturned, are members of anti-gay marriage groups, and Campaign for California Families. The U.S. Supreme Court Justices were basically asking, "How were they injured by the court's decision?" and "What gave them the legal right to complain?" argues "What's at stake in the Perry case is not just the right of California voters to reaffirm the definition of marriage as only between a man and a woman, but whether marriage will be redefined in every state in the nation."

None of these Supreme Court Justices seemed willing to confront the question of whether the United States Constitution guarantees the right to same sex marriages. Kennedy voiced sympathy with children living in same-sex families, but felt that there had not been enough time to evaluate the impact gay marriage would have on society. Right wing Justice Samuel Alito seemed to agree with the need to delay. He asked, rhetorically, "You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet?"

Justice Antonin Scalia, however, who pretty clearly opposes gay marriage, was prepared to address the key issue. The Court needs to decide the case based on Constitutional law and legal precedent, not sympathy with children or concern about the impact of cell phones.

In a series of nasty back and forth comments and questions, Scalia demanded of Thomas Olson, lead attorney for the pro-gay marriage forces, "When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? ... When did the law become this?" Olson conceded "There's no specific date in time. This is an evolutionary cycle," an answer that Scalia dismissed.

But of course there is a date when same sex marriage became constitutional. The 14th amendment to the United States was ratified on July 9, 1868. It granted citizenship to "all persons born or naturalized in the United States" and forbids states from denying any person "life, liberty or property, without due process of law" or "the equal protection of the laws." While states may not have realized that this granted full legal protection to gay citizens including the right to same-sex marriages, that is the date when same-sex marriage became constitutional. Unfortunately, gay Americans have been denied this basic Constitutional protection for over 140 years, and if Justices on the Supreme Court continue in what is essentially a cowardly path, it will continue to be denied for the foreseeable future.

Ironically, this narrow legalistic approach might actually work better for advocates of same-sex marriage in another case before the court. Under the federal Defense of Marriage Act of 1996, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs, the court can rule against the law because it unfairly denies legal and tax benefits while not actually commenting on the issue of same-sex marriage itself.