I suspect Charles Krauthammer is right about gay marriage:
But notice what that second rationale does. If the argument is just federalism, the court is saying: Each state decides — and we, the court, are out of here. But if the argument is equal protection, one question is left hanging. Why should equal protection apply only in states that recognize gay marriage? Why doesn’t it apply equally — indeed, even perhaps more forcefully — to gays who want to marry in states that refuse to marry them?
If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place?
Which is exactly where the majority’s second rationale leads — nationalizing gay marriage, the way Roe nationalized abortion. This is certainly why David Boies, the lead attorney in the companion Proposition 8 case, was so jubilant when he came out onto the courthouse steps after the ruling. He understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.
In the wake of this week's Supreme Court actions, the supporters of putting a same-sex marriage ban into the Indiana constitution vowed a renewed effort next session. I have an editorial in today's paper asking how much zeal they should put into the effort given the inevitability of nationalization. I'll be even blunter here: I think it will be a huge waste of time.
We can't even feel good about the fact that the issue would be decided by a voter referendum. In the California case this week, the court said private citizens didn't have standing to support the gay-marriage ban in court even though they were the ones who created the ban through a referendum. How meaningful will our vote be, really?
Perhaps you don't agree that nationalization is inevitable. If you do, however, I think it's a fair question: When is it important to keep making a stand despite the odds, and when is it time to let go and move on to something else?
