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Marriage equality can't wait

In 1967 when the U.S. Supreme Court struck down laws banning interracial marriage in Loving v. Virginia, there was not a single dissent. Never mind that Virginia's anti-miscegenation statute had been in the books since 1924. The justices unanimously found discrimination in the institution of marriage — previously regarded in some states as solely between one man and one woman of the same race — as abhorrent under the 14th Amendment. That the idea of interracial marriage was not universally embraced did not hold the court back.

Yet the notion that this country may be moving too far too fast on same-sex marriage seemed to enter the fray as a divided Supreme Court's heard oral arguments in cases involving bans on same-sex marriage in Ohio, Tennessee, Michigan and Kentucky on Tuesday. Same-sex marriage may not have the benefit of having been accepted for "millenia," as Justice Anthony Kennedy observed about opposite-sex marriage at one point, but it is now broadly accepted by a majority of Americans as a fundamental right and is legal in 37 states, most a result of state or federal court actions.

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Justice Kennedy's mindset got close scrutiny during the proceedings because many expect him to provide the crucial fifth vote in any decision — ideally one striking down all existing state-level bans on same-sex marriage and requiring states to recognize same-sex marriages entered into in other states. It is not a matter of the court writing law but of interpreting the equal protection clause to prevent states from discriminating against gay and lesbian couples. That's what marriage equality represents — assuring couples and their children equal treatment, both in benefits and responsibilities.

Many are anticipating a favorable ruling. The court has already demonstrated in earlier 5-4 opinions an appreciation of the arguments for marriage equality, particularly in United States v. Windsor when the court struck down the federal government's definition of marriage as opposite-sex only under the Defense of Marriage Act. Arguments like those of Justice Antonin Scalia that this is a matter better resolved in state legislatures ignores the U.S. Constitution's guarantee of equality — a point that time has made all the more obvious since that 2013 decision, as homosexuality is now better understood by courts (and the general public) as a matter of identity and not choice.

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Residents of Maryland, one of the first states to validate marriage equality at the ballot box, understand this issue better than most. Marriage is a civil contract that carries a wide range of benefits from inheritance and parenting rights to matters involving health care and end-of-life decisions. No state requires clergy to violate their faiths and conduct same-sex wedding ceremonies. But no state or local government should be allowed to deny its citizens the right to the myriad civil benefits of marriage, no matter what their sexual orientation.

This is an historic opportunity to broaden the American understanding of equality — just as Loving v. Virginia did nearly a half-century ago. And in both occasions, Maryland has stood at the crossroads. In Loving, Maryland was on the wrong side, having been the first colony to ban interracial marriage. This time, it may be the agent of change as the lead plaintiff in the case, Jim Obergefell, wed his late partner John Arthur on the tarmac of Thurgood Marshall Baltimore-Washington International Airport two years ago. It was Ohio's failure to recognize the marriage that caused the couple to file the lawsuit that now must be decided by the nation's highest court.

While we appreciate the importance of public debate and of the legislative process, there are times when the Supreme Court needs to recognize an evolving understanding of basic human rights. Just as in the Loving case, when the court did not wait on lawmakers in Richmond to correct a disparity, it should not wait on 13 state capitals to have a change of heart regarding same-sex marriage either. The present circumstances, this mishmash of marriage law, is neither tenable nor fair. What Mr. Obergefell and others seek is equal treatment under the law. Should that be denied until public opinion reaches 75 percent approval? Eighty percent? It's time for the court to recognize that the Constitution's guarantees of equality do truly extend to all.

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