It has to do with "our dignity," being able to be who we are openly. That's what Edith S. Windsor the woman challenging the cramped definition of marriage embedded in the so-called Defense of Marriage Act (DOMA) said in a documentary about her longtime relationship with Thea Spyer. The two were married in Canada, a country that does not exclude lesbians and gay men from marriage, after more than 40 years together and not long before Spyer died of complications related to multiple sclerosis.
The U.S. Supreme Court heard oral argument in the case lodged by Windsor and in another case challenging California's ant-gay law, Proposition 8, which stripped lesbians and gay men of the right to wed in that state. It's difficult to predict how the Court will rule based solely on oral argument. But a consensus is building among many court-watchers that the justices appeared likely to move only incrementally on marriage equality.
In the Prop 8 case, Hollingsworth v. Perry, the justices dwelled heavily on a threshold question - is a handful of Prop 8 proponents the right group to defend the law before the Court. If the justices toss the case on procedural grounds, it likely means that lesbians and gay men can resume obtaining marriage licenses in that state, but would have no effect elsewhere. In the DOMA case, U.S. v. Windsor, the justices also focused heavily on standing, but when they turned to the substance of the case - a constitutional challenge to the federal government's narrow definition of marriage - several of the justices seemed far more concerned about the law's impact on federalism than on equal protection. Thus a majority of justices may be ready to invalidate DOMA's central provision, but on very narrow grounds. So in both cases the Court could provide very little progress on a core question - should laws that classify lesbians and gay men for unequal treatment be subjected to a much tougher constitutional test?
Supporters of marriage equality in both cases urged the justices to find that laws targeting gay men and lesbians should be subjected to a heightened scrutiny when challenged in court. In other words, the government would have to show a compelling interest in enforcing a discriminatory law - a very difficult test to meet. The high court, however, can avoid that declaration and questioning during oral argument in both cases suggested that may be what occurs. On marriage alone, however, it is unlikely - regardless of how the Court rules -- that the robust movement for marriage equality will stall. These cases have made the question over marriage an easier one for many Americans to answer.
But if the high court takes the narrow route - dismissing Prop 8 on standing grounds and striking DOMA only on federalism grounds - it will mean that many lesbians and gay men will continue to be treated differently and unequally by too many states. As my friend Judith Schaeffer wondered in a moving column for USA Today, will she and he partner, Eileen Ryan, continue to be "respected as a married couple during the day when we work in Washington, but not after we drive home in the evening across the Potomac River into Virginia?" Eileen and Judith were wed in Canada, like Edith and Thea, and scores of other loving and committed same-sex couples. The District of Columbia and nine states recognize same-sex marriage. More than 30 states exclude lesbians and gay men from marriage. With DOMA denying benefits to legally wed same-sex couples, this set-up creates "two kinds of marriage: the full marriage, then this sort of skim milk marriage" as Justice Ruth Bader Ginsburg put it during oral argument in Windsor.
During oral argument in the Prop 8 case, the disturbing argument that states' primary interest in marriage is regulating procreation also got plenty of attention, for better or worse. Justice Antonin Scalia made a flippant remark that maybe states should condition the issuance of marriage certificates on applicants' fertility. Justices Elena Kagan and Stephen Breyer rebutted Scalia's snide comment, noting that there are many who marry with no intention of reproducing for any number of reasons. Indeed Roberts himself adopted kids - should his marriage be questioned? As Ted Olson, the attorney representing the aggrieved same-sex couples in the Prop 8 case, noted procreation has nothing to do with the right to marry.
There may not be a Supreme Court majority to correct this unequal marriage regime and that would provide a disheartening setback to advancing equality. We know that if the states are left to their own devices on the question of marriage equality, many will continue treating same-sex relationships with great disdain. And decades from now, many will wonder what was so difficult about embracing the Constitution's call for liberty, justice and equality for all.