The national debate surrounding gay marriage shows no signs of abating. This week the U.S. Supreme Court declined, without comment, to hear an appeal seeking to overturn the Massachusetts Supreme Court ruling permitting gay marriage. The practical consequence of this non-decision — that gay and lesbian couples will continue to be allowed to marry in Massachusetts — is positive. Yet the lack of a Supreme Court decision on this matter, coupled with the Bush administration’s renewed push for a federal constitutional amendment banning gay marriage, threatens to eventually result in discrimination being enshrined in the U.S. Constitution.

Angela Cesere

It is impossible to know for sure why the Court chose not to hear the appeal brought by the Liberty Counsel, an Orlando-based conservative group, as the court made no comments on its decision. There is not currently a split among U.S. circuit courts on gay marriage, a condition that would likely ensure that the case is heard. There has been speculation the court may be deliberately avoiding a controversial political issue. However, the court has an obligation to protect the rights of all Americans, and it should not back off a case simply because it is too contentious.

Troublingly, however, the Bush administration saw this week’s events as an opportunity to build more support for an amendment banning gay marriage. White House spokesman Scott McClellan argued in a press briefing Monday that a constitutional amendment is necessary to prevent state courts from allowing gay marriage, saying that “activist judges are seeking to redefine marriage for the rest of society, and the people’s voice is not being heard in this process.” McClellan went on to voice concern that the federal Defense of Marriage Act, which currently prohibits other states from recognizing gay couples married in other states, might be overturned in court.

In today’s environment, court rulings in favor of gay and lesbian couples are the most robust way to ensure the right of these couples to marry. Though some denounce such rulings as an extreme case of judicial activism, the true issue here is not judicial activism but rather the threat of majority tyranny. The principle of judicial review ensures that courts may invalidate laws that violate the rights of a minority, no matter how popular the laws may be. If a court fulfills McClellan’s fear and overturns the federal Defense of Marriage Act, the decision should not be viewed as “activism,” but rather as a sign that the DOMA was itself flawed.

There is a strong argument that the Equal Protection Clause of the Fourteenth Amendment requires states to recognize civil unions, if not gay marriage outright. When the time comes, this argument deserves to be heard in federal court. Further court battles over gay marriage are inevitable, and judicial review is integral to the proper functioning of our government. The executive branch should not settle this question prematurely by pushing for constitutional change.

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