After DOMA

While the nine members of the United States Supreme Court ponder what will likely prove to be two of their more historic decisions, the leaders and citizens of Utah can start thinking about some choices they will need to make, too.

Just how far behind the rest of the nation, behind the march of history, do we want to be? And for how long?

After two days of argument, it appears likely that the Supreme Court will make two major rulings that will benefit the cause of same-sex marriage in the United States. Tuesday, the justices considered California's Proposition 8, the ballot measure that overturned a decision of that state's top court making gay marriage legal. Wednesday, they heard arguments for and against the federal Defense of Marriage Act, which says the only kind of marriage federal programs can recognize is the one-man/one-woman kind.

Court watchers are predicting that, while the ruling may be narrow, perhaps applying only to California, it seems unlikely that Prop 8 will survive.

It also seems likely that the court will be more assertive in the case of DOMA, probably striking it down as unwarranted federal interference in a traditionally state matter and/or an impermissible act of bigotry masquerading as law.

What the court shows no stomach for is any grand gesture that would defend — or overturn — the view that heterosexual marriage is the only version that the law can recognize. Thus we seem headed for a future where the recognition of same-sex marriage is likely to continue, state by state, through a democratic process, with little or no federal intervention, until it becomes as common as it once was rare.

Not that that would simplify matters, for states or for same-sex couples who are, or who want to be, married. Leaving — or returning — the definition of marriage to the states means more years of confusion over the status of same-sex couples who legally marry in one state (say, California) and then move to another state that does not recognize their union (oh, just for the sake of argument, Utah). Problems involving everything from taxation to divorce to child custody arrangements will follow.

The likely resolution will come when a critical mass of states has fully recognized same-sex marriage, pushing either Congress or the Supreme Court to determine that the 14th Amendment's promise of equal protection of the laws demands national acceptance of gay and lesbian unions.

Rather than stand and watch the rest of civilization pass us by, it would be wise for Utah to join with those states in recognizing same-sex marriage for the civil right it truly is.