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tom keane

Act on marriage

Edith Windsor, 83, is at the center of a Supreme Court gay marriage case after she was denied federal benefits when her wife and partner of more than 40 years died.

Eduardo Munoz/REUTERS

Edith Windsor, 83, is at the center of a Supreme Court gay marriage case after she was denied federal benefits when her wife and partner of more than 40 years died.

When boozed-up pop star Britney Spears married Jason Allen Alexander in Las Vegas several years ago, the Commonwealth of Massachusetts acknowledged the validity of their union — all 55 hours of it. It may have been an ill-advised and ill-considered act of stupidity — a fraud, in fact — but if Nevada said it was OK, that was good enough for the Bay State.

On the other hand, if a married same-sex couple from Boston were to travel to Nevada, their marriage — no matter how soberly entered into, no matter its length or commitment — would be unrecognized. What is good enough for Massachusetts is not good enough for Nevada.

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The same is true at the national level. If Spears and Alexander’s marriage had lasted long enough for them to file their taxes, they could have filed jointly. Not so with a married same-sex couple. The Defense of Marriage Act — signed by Bill Clinton, of all people! — stops that, denying federal recognition of their marriage, and letting states do the same.

It’s an untenable state of affairs, the kind of conflict among the various states and the federal government that demands resolution — meaning, eventually, the US Supreme Court gets involved. And so with its decision to hear two cases (one on California’s Proposition 8, which banned same-sex marriages, and the other a challenge to DOMA), in 2013 it likely will. What unfolds could well be one of those rare, exceptionally consequential moments in American history, on par with the civil rights cases that culminated in Brown v. Board of Education in 1954 — or perhaps, more grimly, 1857’s Dred Scott decision.

You knew it had to come to this. Nine years ago, in Goodridge v. Department of Health, Massachusetts’ highest court declared same-sex marriage a constitutional right. The Commonwealth was an outlier then. Today, the novelty of that decision has worn off. Eight other states and the District of Columbia now offer same-sex marriage. A solid majority of Americans support the idea, and approval ratings are even higher among those who are younger, suggesting a real generational change. Concerns that same-sex marriages would somehow undermine conventional marriages haven’t materialized. And hesitant politicians, once fearful that anything gay was electoral death, are now coming around (proving once again that politics is less about leadership than it is about deftly figuring out where the masses are heading).

With the new year, the two cases will doubtless become a national preoccupation, in much the way that the court’s hearings on health care reform absorbed our attention last spring. Having said that, it’s quite possible the Supreme Court just punts. There are a lot of ways to do this — rule so narrowly that the cases don’t carry much precedent, find a technical reason to dismiss them, or just send them down to lower courts to mull over other issues.

Assuming the court does rule on the merits, however, it could go many directions. It could simply read the “equal protection” language of the 14th Amendment to the Constitution as prohibiting discrimination, and proclaim marriage equality, much as happened in Massachusetts. Or it could go halfway, leaving the definition of marriage up to individual states, while at the same time requiring that they (and the federal government) recognize the validity of other states’ marriages, be they straight or gay.

On the other hand, some fear that these cases come too soon, that the notion of same-sex marriage is still too new and its support too fragile. Far more states ban gays from marrying than permit it, for example. The court might actually uphold DOMA. It might even seek to ban same-sex unions altogether.

I don’t think this will happen. Granted, the Supreme Court’s composition is far more conservative than was the court in Massachusetts. But judges understand the power they have not only to clarify laws, but to change public opinion. One wonders whether, absent Brown, segregation might still persist in the United States and whether, absent Goodridge, a sitting president would have ever declared his support for same-sex marriage. The moments that courts have historically rued have come about when they denied human rights, not advanced them. In the coming months, such thoughts will weigh heavily on the minds of nine men and women.

Tom Keane writes weekly for the Globe. He can be reached at tomkeane@tomkeane.com.
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