The brief cease-fire in the war over marriage in Maine ended this week with competing rallies at the State House. The National Organization for Marriage, or NOM, which advocates retaining the traditional definition of marriage, and Equality Maine, which supports same-sex marriage, each gathered supporters in Augusta. They each made the case to the public that their convictions are deeply held and that they will not relent in pursuit of their goals. The advocates of traditional marriage, who believe this age-old social, civil and religious institution is inherently a one-man, one-woman partnership, won a decisive round with the repeal vote of Maine’s same-sex marriage law in November.
But the odds are not on their side.
Sooner than later, the right to marry will be extended to gay and lesbian couples by the judicial system, regardless of the electorate’s sentiment on this emotionally charged issue. Exhibit A in that prediction is last week’s decision by a federal court in Boston that the federal Defense of Marriage Act, or DOMA, was unconstitutional. The court found that DOMA interfered with state rights and — more importantly — that it violates the Constitution’s equal protection clause.
On the other coast, a federal court in San Francisco soon will rule in the challenge to California’s Prop 8, the “people’s veto” that repealed that state’s same-sex marriage law. Regardless of how the California court rules, a Supreme Court decision may soon follow. If the high court takes up the is-sue, it could mean justices anticipate making a definitive ruling on the matter; traditional marriage advocates may wish otherwise.
If the history of access to liberty and the pursuit of happiness for Americans were plotted on a graph over time, a slow but steady rise would be revealed. Despite emotional appeals to the sanctity and purity of the Constitution, our history shows that freedom has been very much a relative term, and a term whose scope has been broadened again and again. Would social conservatives defend the laws that banned half the population — women — from being able to vote for nearly 150 years? And what about slavery? That seemingly visionary Constitution deemed a portion of our population was property, not people.
That graph would show Americans continuing to move toward greater inclusion, greater tolerance of minorities, as rights and privileges are extended to more and more people. The counterargument might be made that this trend risks moving the nation toward licentiousness and relativistic morality. But in tracing the line from decisions like the Voting Rights Act through the Americans With Disabilities Act, it is easy to see that allowing same-sex couples to marry will eventually be understood as fair and just, and not as a threat to heterosexual marriage.
The third branch of government is so critical on issues like same-sex marriage because it weighs the question in a dispassionate, logical manner. If — or when — courts settle the issue, 25 years from now young Americans will wonder what all the fuss was about.