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Editorial: Same-sex marriage deserves equal protection, now

Yesterday, the U.S. Supreme Court heard arguments in a case involving California’s Proposition 8, a ballot initiative that overturned that state’s law permitting gay marriage. Today, it will hear claims and counter-claims on the constitutionality of the 1996 federal Defense of Marriage Act, the law that forbids federal recognition of same-sex marriages and denies federal benefits to same-sex couples legally married in New Hampshire, eight other states and the District of Columbia.

The court could decline to resolve one or both cases – the California case on the grounds that supporters of Proposition 8 lacked standing to sue over the failure of that state to enforce the act, the latter by ruling so narrowly that it keeps most of the federal law in place or saying that the issue should be left up to the states. It could issue a ruling on Proposition 8 that could apply only to California, or to the states where gay marriage is legal but not to those where it’s not. Or it could do what justice calls for and society will ultimately demand: end discrimination and rule that same-sex marriages deserve equal recognition under the law.

In New Hampshire, legalizing same-sex marriage has had a positive impact on the lives of gay residents and their families and no impact on the lives of other people. That’s been the experience in Vermont, the first state to legalize gay marriage, and everywhere else, too. But many – perhaps including some on the court – fear that a blanket ruling legalizing gay marriage would create strife by moving the law forward faster than many Americans are morally, religiously or psychologically prepared to travel. That argument, however, overlooks the reality that the current prohibitions on same-sex marriage are both unconstitutional and doing real harm.

Karen Morgan is among those being harmed. She’s the wife of Charlie Morgan, the New Hampshire National Guard soldier and crusader for gay marriage who died last month after a long battle with breast cancer. Because the Defense of Marriage Act forbids extending military survivor benefits to same-sex spouses, Karen Morgan and the couple’s 5-year-old daughter will struggle more than the surviving spouse and child of a heterosexual marriage. That’s wrong. If the court overturns the law, surviving spouses like Karen Morgan would be eligible for 72 benefits now denied spouses in same-sex marriages, including survivor benefits.

Couples in same-sex marriages should receive the same treatment under federal law as heterosexual couples, including tax benefits reserved for married couples. The case against the law, for example, was filed by a woman who will owe $360,000 in estate taxes that would go untaxed had her late spouse been a man. That’s wrong. There are tax benefits that contribute to the well-being of children in traditional marriages and penalize children in gay marriages when they’re not conferred. That too is wrong.

The court is understandably loathe to act in a way that upsets millions of Americans, even as public opinion about gay marriage, particularly among young people, has become dramatically more accepting in recent years. But the message the high court sends should not be that a fundamental right can be abridged until society at large is prepared to grant it.

Equal protection under the law must mean equal protection now, not later when it’s more convenient or less upsetting. The court should overturn both Proposition 8 and the Defense of Marriage Act.

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