The Washington Post
December 11, 2012
Now that the Supreme Court has signaled its willingness to address the same-sex marriage question by deciding to hear two cases, everyone is trying to figure out what the end result might mean. Until that happens we’re all groping in the dark. I’d love for there to be a sweeping ruling that nullifies the so-called Defense of Marriage Act (DOMA) and affirms that same-sex couples have a constitutional right to marry. I’m an optimistic fella, but I’m not that optimistic. The more I read about what the court may or may not do, the more I’m growing comfortable with the idea that the court might punt. In two nifty charts (one for each case), the centrist think tank Third Way gets at what I’m talking about. In Hollingsworth v. Perry (a.k.a the Prop 8 case), the court could hand down a narrow ruling that only applies to California. In Windsor v. the United States, (a.k.a the DOMA case), the court could rule that the federal government must view as married same-sex couples in states where marriage equality is legal. This punt would hardly be ideal. But it would be the first of what would be a two-step solution that makes the second step of full marriage equality even more inevitable. What the court would have done is buy itself some time on the more sweeping question of the constitutional right for gay men and lesbians to marry.