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Editorials

March 27, 2013

EDITORIAL: Gay Marriage Will Survive Whatever the Supreme Court Says

"What Do You Care What Other People Think?" is the title of a book by the late physicist Richard Feynman. If one of the most independent minds of the 20th century worried that he cared too much, then surely the nine justices of the Supreme Court must, too.

After the first of two days of oral arguments on the constitutionality of same-sex marriage, it's clear the court can't ignore what other people think — and can't afford to. Support for same-sex marriage has come from politicians, elected officials, professional athletes and the thousands gathered outside its doors this week. Opposition, though declining, is also passionate.

The March 26 case concerns California's Proposition 8, which bans same-sex marriage. Voters approved it in 2008, but a state court later ruled it unconstitutional. The state has declined to defend Proposition 8, leaving the task to the law's proponents.

Several justices questioned whether that was appropriate: The proponents haven't suffered the particular harm that the law requires of such petitioners. "Have we ever granted standing to proponents of ballot initiatives?" Justice Ruth Bader Ginsburg asked. No, was the answer.

Meanwhile, Justice Antonin Scalia asked when, exactly, banning same-sex marriage became unconstitutional. Was it 1791? 1868? "When did it become unconstitutional to prohibit interracial marriages?" came the answer. "When did it become unconstitutional to assign children to separate schools?"

As usual, the most important justice was Anthony Kennedy, who has written ringing defenses of both states' rights and gay rights. What does the most unpredictable member of the nation's most important court do when two of his most cherished principles collide?

Kennedy's one-word answer, insofar as it can be gleaned from the arguments: punt. "I just wonder if the case was properly granted," he said. It's too soon to know how same-sex marriage will affect society, he said, and rather than require all states to recognize it — or, conversely, outlaw it, or some in-between option — he seemed inclined to dismiss the case.

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