Another day of arguments over gay marriage at the Supreme Court today as the justices take up the issue of the constitutionality of the Defense of Marriage Act (DOMA).

The Wall Street Journal has a preview:

The court scheduled an hour and 50 minutes for the case on the Defense of Marriage Act, which denies federal recognition and benefits for same-sex couples even if their unions are blessed by states. Challenging the law is Edith Windsor, who was married to her longtime partner under New York state law but had to pay inheritance tax after her spouse died because the federal government didn't acknowledge their marriage. Lower federal courts have invalidated the law, saying the federal government has accepted state-authorized marriages in other instances. Solicitor General Donald Verrilli, representing the Obama administration, is set to argue before the high court alongside Ms. Windsor's lawyer that the law should be struck down. After the Obama administration said in 2011 that it believed the Defense of Marriage Act was unconstitutional, the Republican-led House of Representatives stepped in to lead the fight to uphold the law. It will be represented Wednesday by former Solicitor General Paul Clement, who argues that Congress had good reasons in 1996 to adopt a single nationwide federal definition of marriage as the union of a man and a woman. Though the main litigants agree the House lawmakers had legal standing to take up the case, the Supreme Court appointed a Harvard Law professor, Vicki Jackson, to argue that the House appeal should be thrown out because the lawmakers wouldn't suffer any injury if the law were nullified. The first 50 minutes of argument were scheduled to debate the standing issue, followed by an hour on the merits of the case.

Liberals are up in arms over the tone and tenor of questions asked by justices yesterday during the Prop 8 hearing. It appears that if the court strikes down Prop 8, it will be a very narrow ruling, clearing the way for states to determine their own marriage laws. This is a far cry from what liberals wanted, which was a sweeping declaration that would make gay marriage legal in every state.

Justice Kennedy had it about right:

Justice Kennedy showed sympathy for the argument that it was too early to know whether gay marriage could be harmful. No state authorized same-sex marriage until Massachusetts in 2004. "We have five years of information to weigh against 2,000 years of history or more," he said.

And that's the bottom line. Liberals want to flip a switch and radically alter one of society's most important institutions; marriage. The want the court to ride roughshod over the clear voice of the people who refused to legalize gay marriage in California via a referendum.

Historically, the Supremes are very reluctant to issue a ruling that would either make a big change in society or nullify the outcome of the democratic process. That's why it is likely that they may not even strike down Prop 8 - or DOMA - but make it clear that states have the right to settle the issue themselves.

I would expect a few years from now when gay marriage has been adopted by many other states, that the Supreme Court will revisit the issue and at that time, they may act to legalize it nationally. It would seem silly that a same sex couple married in Illinois couldn't enjoy the same rights and privileges in Alabama, especially if the practice is legal in a couple of dozen other states.

But that point has not been reached - yet. If they rule as many court observers believe they will, the Supremes will make clear that gay marriage is an evolutionary process and not a revolutionary one.





