Best outcome is a guarantee of equal rights that leaves room for states to decide the means.


Like most political issues, the nation's roiling debate over same-sex marriage, which arrives at the Supreme Court on Tuesday, is waged mostly in a shorthand, skipping over the knotty legal details.

OPPOSING VIEW: Affirm traditional marriage

Opponents argue — with devout conviction and, until recently, notable success — that marriage should be confined to unions between a man and a woman because that's what their religion teaches. That sentiment has produced gay marriage bans in 38 states. But it skips over an inconvenient fact: The same Constitution that keeps government from meddling in the way churches define marriage also keeps churches from using government to impose their beliefs on others.

Same-sex marriage supporters, meanwhile, indulge a different leap of logic. They argue that gays have a constitutional right to marry. Not necessarily. The Constitution guarantees all citizens equal treatment under the law, but gay marriage isn't the only way to attain that end. Even if the court decides same-sex marriage is a right, reluctant states could opt out of issuing marriage licenses entirely.

That improbable outcome would require wholesale restructuring of state laws and satisfy neither side. But it points to the potential for unexpected and incomplete outcomes as a wary court parses the complex issues raised by the two cases it will hear Tuesday and Wednesday.

At least two justices — Anthony Kennedy and Ruth Bader Ginsburg — have voiced concern about prematurely interrupting a fast-moving political debate, as happened after Roe v. Wade, and both sides see Kennedy as the pivotal justice.

What the court cannot do, however, is let blatant inequality stand, and at a minimum that should place California's gay marriage ban — the subject of Tuesday's arguments — in grave jeopardy.

Marriage law in California is now so absurd that it invites parody. Because the state briefly permitted gay marriage, 18,000 same-sex couples there are legally wed. But because a voter referendum later banned the practice, no others can join them. That situation cannot stand, and appeals courts wisely struck down the ban, on narrow grounds, pending Supreme Court review.

Since the high court has previously ruled, in an opinion written by Kennedy, that rights can't be taken back from gays once they've been granted, the likeliest result is that California will become the 10th state to permit same-sex marriage.

The tougher question is how much further the court might reach. David Boies and Theodore Olson, the political odd couple leading the legal charge for marriage equality, have on their side the potent precedent of the 1967 ruling in Loving v. Virginia, which ended 16 state bans on interracial marriage. But that ruling came after Congress had passed landmark civil rights laws, effectively ending the nation's long fight over segregation. Today's justices might be leery of overturning same-sex marriage laws in three-fourths of the states with the debate still fully engaged.

The Supreme Court's second case challenges the 1996 Defense of Marriage Act, which defines marriage as between a man and a woman for purposes of federal benefits. Congress passed the law with huge majorities, but since then the president who signed it, Bill Clinton, has repudiated it amid rapidly shifting national attitudes toward homosexuality. The case at least bypasses one level of complexity: The court wouldn't be infringing states' choices by overturning it, a concern for some justices. In fact, it would be deferring to their judgment.

When the court issues its rulings, likely in June, the best outcome would be a guarantee of equal rights that leaves room for states to decide the means.

If that's not possible, public opinion and civil rights history both suggest the court's choice could be less whether to endorse gay marriage than when and how.