The decision has already been made in the court of public opinion

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It's time for High Court to catch up with voters on same-sex marriage
By Rep. Mark Takano (D-Calif.), March 28, 2013

This week, the Supreme Court heard arguments on the most important civil rights cases of our time – Hollingsworth v. Perry (challenging California’s Proposition 8) and United States v. Windsor (contesting the constitutionality of the Defense of Marriage Act). Both Proposition 8 and DOMA define members of the LGBT community as second-class citizens who are incapable of the same commitment as straight couples, and as a class of citizens who pose a direct threat to the American way of life.

Since the passage of these laws, our nation has evolved and come to understand that such thinking is not based in reality. Those who believe our nation can promise equality, yet practice discrimination, stubbornly refuse to recognize the contradiction that these laws pose to our nation’s ideals. Most Americans now recognize an enlarged meaning of equality and would accept a broad application of the equal protection clause that would make same sex marriages legal everywhere in the nation.

Polls increasingly indicate public sentiment favors marriage equality, as my election last November as California’s first openly gay member of Congress shows. I was not elected in the state’s liberal strongholds, such as San Francisco or Santa Monica, but in Riverside County, one of the areas that heavily supported Proposition 8 in 2008, adding to its narrow 2 percent passage statewide.  

If given the opportunity, I believe voters would have reinstated same sex marriage in California last year, just as voters in Washington, Minnesota, Maine, and Maryland decided ballot measures that affirmed marriage equality. Moreover, beyond Republican Senator Rob Portman’s change of heart, Democratic Senators from red-states stepped forward in support of marriage equality, with Kay Hagen of North Carolina being the latest. 

President Obama is fond of quoting Martin Luther King’s belief that the arc of history bends toward justice, but on the matter of marriage equality, the arc of which the President speaks has lately become an acceleration curve.

Not that the court should base its decision on public opinion, but rather it should muster the boldness to affirm what is constitutionally and morally right and not be so concerned with making an untimely decision that it fears the public will not accept. Sometimes the court leads public opinion, as in the case in which Chief Justice Earl Warren forged a unanimous decision in Brown v Board, a decision that President Eisenhower had to enforce with federal troops in Little Rock. The unanimity of the court and a cooperative president who enforced the decision compensated for large portions of mid 20th century America deeply gripped in racism.

In cases where the Supreme Court is unlikely to achieve unanimity, the question of a timely decision is relevant. Some pundits now speculate that many of the Justices are reticent to repeat a protracted backlash that accompanied the 5-4 Roe v. Wade decision and that is why they might shrink from making a 50 state solution decision regarding marriage equality.  

The Windsor and Perry cases now before the court are unlikely to be decided unanimously, but even with a divided decision, the majority should be secure in acting boldly.

It is time for the Supreme Court to catch up with the people of this nation, and deem both of these discriminatory laws what they are and always have been – unconstitutional.  

It’s time to overturn DOMA and Proposition 8, and allow the nation to accelerate towards justice. The people are ready. The Supreme Court will be ratifying a decision that has already been made in the court of public opinion.
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