“No man can logically say he [doesn’t] care whether a wrong is voted up or voted down. He may say he [doesn’t] care whether an indifferent thing is voted up or down, but he must logically have a choice between a right thing and a wrong thing.” Abraham Lincoln

“I know now that, even worse than providing an excuse for discrimination, [DOMA] is itself discriminatory. It should be overturned.” Bill Clinton

One of the things I find most regrettable about Modern American Life is that we have such a deep disconnect with our own history. Although the History channel and its kins-networks, A&E, Biography, Discovery, etc., etc. are but a channel click away—to say nothing of, gasp!, books, or as my partner would say “Kindles” (whatever those are)—most of our fellow countrymen don’t have much connection to the Great Moments in Time which have shaped the framing of this still-being-framed (with apologies to the strict constructionist crowd) Picture of What and Who Is America.

Our nation’s Anti-Federalists, Frontier Hunter/Heroes, Mugwumps, Know-Nothings, Free-Soilers, Barnburners, Doughfaces, Copperheads, Fire-Eaters, Scallywags, Bourbon Democrats, Locofocos, and their likewise ash-heaped brethren will likely be remembered (if they are remembered at all) by a small sub-culture of sallow, wine-drinking, tweed-wearing, Metro-sexual types who listen to NPR (or its 22nd Century-equivalent) and stalk Wikipedia in the wee-small-hours.

I mention this because at this very moment, we stand upon the precipice of one such Great Moment in Time, with the U.S. Supreme Court hearing oral arguments this week in the cases which challenge the egregiously exclusionary Defense of Marriage Act (DOMA), and the last gasp of Jim Queer-disguised-as-states’-rights (or worse, Popular Sovereignty, another slave-era holder; check History for times and listings…), California’s Proposition 8.

Justice Anthony Kennedy himself, the Is-He-Or-Isn’t-Boy for LGBT Rights among the high court, wrote in his majority opinion for Lawrence v. Texas that, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” That 2003 decision illegitimated sodomy laws as violating constitutionally-protected liberty.

When the voters approved Proposition 8, they rewrote the California constitution so that “only marriage between a man and a woman is valid or recognized in” that state. For purposes of all federal laws, the 1996 Defense of Marriage Act defines the word “marriage” to include “only a legal union between one man and one woman.”

In their brief to the high court arguing in support of DOMA, opponents of same-sex marriage argued that, just as the states have a right to define marriage as they choose for their own purposes, so does the federal government. This is, of course, the same argument used to justify slavery (including, sadly, by the Supreme Court of its day; see History for the “Dred Scott Decision”).

This week, the Supreme Court heard oral arguments on challenges to a section of DOMA and to Prop. 8. Though very different in nature (see this week’s POLITICS, “DOMA or Prop. 8: Which Ruling Matters More?” on the facing page, for an analysis), in both instances, the court has the opportunity to rule that the U.S. Constitution prohibits the federal government and every state from so narrowly defining the fundamental right of marriage, and that it likewise fully protects the liberty of same-sex couples.

As the California Supreme Court noted when they legalized same-sex marriage (prior to the enactment of Prop. 8), the reason for denying marriage equality was to officially label these unions as not of “comparable stature or equal dignity” to heterosexual marriages.

The intent of Proposition 8—passed, of all places, in the “Land of Fruits of Nuts”—was to enshrine discrimination into law and to encourage the stigmatization of gay men and women and same-sex couples.

DOMA has the same impact. And in depriving gay couples and their kids federal benefits and recognition, it fails to pass Constitutional muster.

It’s dangerous to compare what sits before the high court—particularly the Proposition 8 case—to Brown v. Board of Education, the 1954 Supreme Court decision that outlawed segregated schools (and the Jim Crow doctrine of “separate but equal”).

The problem with Brown was the justice’s call for states to end racial discrimination in public schools “with all deliberate speed.” It permitted the states to drag their feet in meaningful integration of the schools much as the aftermath of Reconstruction (more History channel stuff) gave them an excuse to delay implementing the civil rights of African-Americans for a century after the Civil War won them their “freedom.”

Between now and June, the high court can decide—without ambiguity—that the Constitution upholds equally the right to marry for all couples, and that this right applies both to the federal government and to every one of the United States.