The Pine Cone's editorial of the week

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Editorial: It's way too early to start celebrating

Published: March 29, 2013

ONE OF the ironies of this week’s debate about same-sex marriage at the U.S. Supreme Court was that, on Monday, gay marriage proponents were asking the court to require states to adhere to a uniform national standard about who can be married, while on Tuesday, they were urging the court to require the federal government to defer to state laws about which couples are eligible for marriage licenses and the benefits that come with them.

The irony was overlooked by most national media reporters and commentators, who fell all over themselves covering the court’s deliberations from a pro-gay-marriage point of view, and who struggled mightily to foresee a favorable outcome in whatever the justices of the court had to say.

After Monday’s hearing, for example, the New York Times gave big, front-page play to comments from several justices to the effect that the lawsuit over Prop. 8 might have to be thrown out of court on a technicality — an outcome which (the New York Times hopes) would overturn Prop. 8 and make gay marriage legal once again in California.

And then on Wednesday, the “CBS Evening News” gave extensive coverage to quotes from various justices during a second day of debate over gay marriage to the effect that a federal law recognizing only traditional marriages was probably an unconstitutional intrusion on states’ rights.

Here at The Pine Cone, we certainly agree that gay marriage should be legal, and that federal benefits should be available to same-sex couples. But we also believe that undue optimism isn’t helpful, and that it’s important to take a realistic view of what happened at the Supreme Court this week. In fact, a very likely outcome is that the court will decide marriage laws are the sole province of the states, and that the federal government will have to defer to them, not only by recognizing the validity of gay marriages in states that allow them, but by letting some states decide not to permit them, if that’s what a majority of the residents or legislators of those states decide.

In other words, the Supreme Court is likely to say California can institute gay marriage or not, and the federal government should stay out of it.

To understand why the issue may be put right back in the hands of the people of California, a little background is in order:

Before 2008, gay marriage was illegal in California, as it was almost everywhere, and there had not even been a serious attempt in the Legislature to institute it. But in June 2008, the California Supreme Court unexpectedly ruled that homosexuals had a fundamental right to marry, and that gay marriages must be allowed in the state, regardless of the wishes of the majority of the people and the members of the Legislature.

Just a few months after that ruling, the people passed Prop. 8, overturning the California Supreme Court’s decision and making a ban on gay marriage part of the state’s constitution. The California Supreme Court then upheld the validity of Prop. 8 and abandoned its earlier ruling that gay marriage was a fundamental right.

A lawsuit in federal court followed, leading to a ruling in February 2012 by the Ninth Circuit Court of Appeal that, despite the state Supreme Court’s upholding of Prop. 8, the voters of California were not allowed to ban gay marriage because the U.S. Constitution prohibited a state from taking away a minority right once it had been granted.

In other words, the people of California could have banned gay marriage before the state Supreme Court instituted it, the appeals court ruled, but were prohibited by the federal Constitution from banning it afterward, even though the California Supreme Court said they could.

At this week’s U.S. Supreme Court hearing, it was certainly true that quite a few justices expressed skepticism whether they should even be considering the matter. But if they decide that ruling on Prop. 8 is out of their jurisdiction, it would be very strange for them to let a lower federal court ruling be the final say on it. A more likely outcome, it seemed after Monday’s oral argument, would be for them to refuse to rule on Prop. 8 themselves, but for them to also vacate the lower federal court rulings, which would leave Prop. 8 in effect.

If they do, there will be an immediate effort to take the issue back to the ballot box in California. So, while it may be too early to start celebrating a U.S. Supreme Court ruling upholding gay marriage, it isn’t too early to start getting your petitions ready. Sooner or later, gay marriage will be legal in California, and the sooner the better, as far as we’re concerned. Being complacent now because of a hoped-for outcome at the U.S. Supreme Court will just make that day farther away.