This editorial appeared n Wednesday’s Washington Post:
Last week’s oral arguments before the Supreme Court on the constitutionality of same-sex marriage illustrated a perhaps underappreciated benefit of bringing such a momentous question before the justices: It enabled both sides to present their best arguments, at length, in a setting that guaranteed they would be thoroughly tested and probed. No citizen who cares about this issue could fail to learn from this debate among lawyers and justices.
And the main lesson was how little remains of the argument against recognizing a right to same-sex marriage under the Constitution. As presented by John Bursch, a special assistant attorney general of Michigan, this argument consisted basically of two points: First, because of the unique procreative potential of heterosexual unions, the people of his state and others were not acting irrationally when they voted in 2004 to define marriage as a one-man/one-woman institution; and, second, it should be left to each state’s political process, not the court, to determine whether this definition should change.
Bursch didn’t bother to offer civil unions as a compromise, much less to suggest that there is anything morally wrong with homosexuality. Couples who brought this case before the court, he said, “have bonded with their kids and have their best interest at heart.” He even implied that the justices should refrain from ruling in favor of gay marriage because it might get voted in by the states anyway, and “very quickly,” at that.
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In short, gay men and lesbians entered this battle in full control of the moral high ground, which is both as it should be and, in historical terms, astonishing – a revolution in public opinion wrought through the persistence and courage of a generation of people who were willing to stand up and insist on the truth that they are not invisible and that they deserve full inclusion in the American community.
As for the actual objections Bursch raised: The first has lost force as more and more unconventional families, including those headed by same-sex couples, have proved quite capable of producing and raising well-adjusted children. The second is weightier, yet public opinion has likely already shifted against the position a majority of Bursch’s state found reasonable 11 years ago. This point, which he conceded, put him in the awkward position of asking the court to postpone the inevitable. This, at a time when a ruling against a right to same-sex marriage could cast unions already sanctioned by lower courts into limbo.
As Justice Elena Kagan pointed out, “We don’t live in a pure democracy; we live in a constitutional democracy.” In such a system, fundamental individual rights are not subject to the vagaries of majoritarian politics. The courts exist to vindicate them, without delay, which is what we hope and expect the Supreme Court to do in this case.