Column: Same-sex marriage isn't a question for courts

• Changing fundamental institutions of society requires caution, experimentation in states.

On Friday, the U.S. Supreme Court entered the gay-marriage fray with fanfare. The justices accepted two cases involving constitutional challenges to laws restricting same-sex marriage. One case involves Proposition 8, the ballot measure approved by California's voters in 2008 that defined marriage as between a man and a woman, nullifying a state high-court ruling earlier that year that had permitted gays and lesbians to wed each other for the first time in California's history The other case involves the Defense of Marriage Act (DOMA), the 1996 federal law that also defines marriage as between a man and a woman, and in addition allows states to refuse to recognize same-sex marriages entered into in other states.

Federal appeals courts have already struck down both laws and gay-rights advocates are hoping that the Supreme Court will do likewise, affirming the right to marry as fundamental and invoking the equal protection clauses in the Bill of Rights to overturn restrictions on same-sex marriage at both the state and federal levels.

This isn't likely to happen and, over the long run, it will actually be good for gay-rights supporters, as well as for those (like me) who believe in traditional marriage. If the Supreme Court upholds both Proposition 8 and DOMA, it will affirm the principle that America is a democracy and that marriage is — as it always has been -- the domain of the states. In the American system of federalism states are supposed to be laboratories testing the wisdom of new concepts — such as same-sex unions — and the citizens of the states have the power to decide freely whether and when to adopt those concepts. In November, for example, the citizens of three states — Maine, Maryland, and Washington -- voted on their own to make gay marriage legal. Gay rights advocates cheered that trend, which certainly beats having a court force gay marriage down people's throats.

There are signs that the Supreme Court picked the two cases that it decided to review with an eye to upholding states' rights on the issue of same-sex marriage. For one thing, the high court acted quickly, in a clear effort to have all the constitutional issues argued by March 2013 and settled by a ruling before the justices adjourn in early July 2013. For another, there are a total of 10 pending lower-court decisions on gay marriage where Supreme Court review has been sought. It can't be a coincidence that the court decided to hear the two cases out of the ten where the facts and legal principles invoked seem to be most absurd.

Let's look at the DOMA case. It involves two New York City lesbians, Edith Windsor and Thea Spyer, who traveled to Toronto, Canada, to get a marriage certificate in 2007. Same-sex marriage wasn't legal in New York then. Nor was it legal in 2009, when Spyer died, and Windsor, named as sole heir in Spyer's will, had to pay $363,000 in federal taxes as a non-spouse on Spyer's $2 million estate. New York didn't legalize gay marriage until 2011. Nonetheless, in a tax-refund lawsuit filed by Windsor, the 2nd Circuit Court of Appeals ruled that DOMA had denied equal protection of the law to her because she had married a woman -- even though their Canadian marriage might not have been valid in New York.

The Proposition 8 ruling comes from the 9th Circuit Court of Appeals, a court so notoriously (some would say nuttily) liberal that about 80 percent of its rulings that reach the Supreme Court are reversed each year. Stephen Reinhardt, the most liberal of all the 9th Circuit's liberal judges, wrote that even though California's generous domestic-partnership law gives same-sex couples the exact same rights of inheritance, property division, hospital visitation and so forth as their heterosexual counterparts, Proposition 8 made gay and lesbian couples feel "inferior" because they couldn't use the word "marriage" to describe their relationships. Reinhardt declared that the voters of California had vindictively taken away gays' right to marry — even though that right hadn't existed until the California Supreme Court created it a 4-3 decision a few months earlier.

There are enough legal technicalities in both cases (such as the fact that neither the Obama administration nor California Gov. Jerry Brown's administration is defending the laws in question) for the Supreme Court to sidestep ruling on the substantive constitutional issues. But the justices — especially the four, possibly five conservatives among the nine — are likely to sympathize with the states'-rights issues inherent in both DOMA and Proposition 8. For one thing, as conservatives learned to their chagrin with the Supreme Court's Obamacare decision last June, the Supreme Court almost never overturns a federal law. Gay-rights advocates can nonetheless take heart from the fact that nine states plus the District of Columbia now recognize same-sex marriage, and the youth vote is trending to their side. Why not let the democratic process, rather than court fiat, decide whether American society should change its definition of marriage —or not.

Charlotte Allen is a freelance writer.