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Time for change

Now that the clamor surrounding the hearing of the same-sex marriage cases before the United States Supreme Court has eased, perhaps everyone can take a deep breath here — even those justices.

It was a two-day legal whirlwind as the court heard a challenge first to California’s Proposition 8, which banned same-sex marriage there, and then the Defense of Marriage Act, which restricts federal marriage benefits such as those involved in income tax, estate tax and Social Security to a married man and woman.

And, as the sitting justices heard and questioned the oral arguments put forth in each case, the nation tried to decipher what the likely outcome will be when decisions are announced later this year.

Getting insight into what the individual justices are thinking from their questions from the bench doesn’t always translate into how they may rule. And, indeed, members of the court seemed as aware of their role in history in the making as they were in where the cases stood on legal and constitutional grounds.

And perhaps that history made at least one justice uncomfortable with his role.

“You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet?” asked Justice Samuel Alito. Justice Antonin Scalia, too, seemed concerned about timing during the oral arguments over Proposition 8. “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? ... 1868, when the 14th Amendment was adopted? When did the law become this?”

We’re not sure how much time plays into the decision, other than the fact that public attitudes are changing. As Ted Olson replied to Scalia, “May I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriage? When did it become unconstitutional to assign children to separate schools?”

Pressed, Olson went on to say that “There’s no specific date in time. This is an evolutionary cycle.”

And at some point as thinking evolves, the court must consider how these cases fall under the Constitution.

These cases before the court, however, turn on a rather simple idea: that one’s rights under the law do not depend upon one’s sexual orientation. In other words, if we are to follow the American ideal that everyone is equal under the law, then to prohibit gay couples from marrying and/or to only allow the benefits of marriage to come from union when it involves a man and a woman should be ruled unconstitutional.

And as this page has said many times, if same-sex marriage opponents are looking for reassurance that the world won’t end, they need only to look to Massachusetts — which made same-sex marriages legal in 2004 — to see there has been no cataclysmic destruction of society, no churches or faiths have been forced against their will to perform marriages for same-sex couples.

The commonwealth made that change because its Supreme Judicial Court ruled that the state’s constitution, which was written by John Adams, simply did not allow discrimination based on gender.

If the court is looking for guidance, then it should begin with the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law.

As for timing, it is now.

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