MSame-Sex Marriage Soon May Be on Supreme Court Docket


Gay rights activists “Jose” (L) and “Manuel” (2ndL) and “Ana” (2ndR) and “Maria” (R) stage a wedding ceremony in front of the Portuguese parliament in downtown Lisbon ~FRANCISCO LEONG/AFP/Getty Images)

The U.S. Supreme Court is raising the stakes in the same-sex marriage debate as it considers taking up the issue for the first time, testing momentum built by advocates through electoral wins in four states this month.

The justices are scheduled to confer privately on Friday on 10 pending appeals, including clashes over the federal Defense of Marriage Act, which blocks gays from receiving federal marriage benefits, and a California ballot measure that outlawed same-sex nuptials there in 2008. The high court may say as early as that afternoon which cases it will consider.

Supreme Court involvement would come as gay marriage has seen a surge in public support since 1996, when the Defense of Marriage Act was approved 342-67 in the House of Representatives and 85-14 in the Senate and signed by President Bill Clinton. By Jan. 1, same-sex couples will be able to wed in nine states and the District of Columbia, and President Barack Obama has said he backs that right.

“Even if the court avoids ruling on the big question — whether gays and lesbians are entitled to marry — these cases will still be hugely important,” said Adam Winkler, a constitutional law professor at the University of California at Los Angeles School of Law. “They will establish standards and rules that will impact future gay-rights cases.”

Previous Supreme Court cases provide few hints as to how the court will rule. Although Justice Anthony Kennedy, who may cast the deciding vote, backed gay rights in 1996 and 2003 rulings, neither case involved marriage.

Advocates on both sides say the court is all but certain to review the Defense of Marriage Act, a law that two federal appeals courts have said is unconstitutional. Less clear is whether the justices will take up the potentially more sweeping fight over California’s Proposition 8.

The challenge to that ballot measure is being pressed by Theodore Olson and David Boies, the lawyers who faced off against each other at the Supreme Court in the Bush v. Gore case that resolved the 2000 presidential election deadlock. They filed the suit with an eye toward winning a Supreme Court ruling establishing same-sex marriage as a constitutional right.

The California case “would be an opportunity for the court to go on the record for the first time” on that issue, said Jane Schacter, a Stanford Law School professor who teaches constitutional and sexual-orientation law. The question is “whether they want to engage with the underlying issue of whether same-sex couples have a right to marry.”

Voters this month approved gay marriage in Washington, Maryland and Maine — the first states to give such consent at the polls — and rejected a bid in Minnesota to amend the state constitution to bar the practice.

The Obama administration announced last year that it would begin opposing the Defense of Marriage Act in court, leaving congressional Republicans led by House Speaker John Boehner to spearhead the defense.

Opponents say the law, known as DOMA, unconstitutionally bars legally married gay couples from getting the same federal benefits as opposite-sex spouses. Under the law, people in same- sex marriages can’t file joint federal tax returns, claim exemption from estate taxes, receive Social Security survivor benefits or obtain health insurance as the spouse of a federal employee.

“This is an arbitrary law,” said Mary Bonauto, a Boston lawyer with the Gay & Lesbian Advocates & Defenders whose clients include seven gay Massachusetts couples and three surviving spouses challenging DOMA. “It is arbitrarily treating one group of married people as unmarried.”

Supporters of the law say it promotes traditional marriage and by extension makes it more likely that children will grow up in a nurturing environment.

“Of course, Congress has the right to define such a fundamental institution,” said Brian Brown, president of the Washington-based National Organization for Marriage, which opposes same-sex nuptials. “This is a question for the representatives of the people. Congress represents the people.”

The Boston-based 1st U.S. Circuit Court of Appeals and the New York-based 2nd Circuit both rejected the measure. Ruling in the Massachusetts case, the 1st Circuit pointed to “a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.”

The 2nd Circuit broke new legal ground by saying that laws discriminating against gays, like those targeting racial minorities and women, should get especially rigorous scrutiny from the courts. The Supreme Court has never adopted that approach.

The 2nd Circuit ruling was a victory for 83-year-old New York resident Edie Windsor in her fight against a $363,000 estate tax bill imposed after the 2009 death of her spouse, Thea Clara Spyer. Windsor and Spyer were married in Canada in 2007, a marriage the 2nd Circuit concluded would be recognized under New York law.

Although both sides in the case are asking the high court to rule on the marriage law, they disagree about which of the eight pending appeals the justices should take up.

Congressional Republicans are asking the court to review the 1st Circuit decision. That case probably would disqualify Justice Elena Kagan, who played a role in the Massachusetts litigation when she was Obama’s top courtroom lawyer.

The Obama administration, while not saying directly that it would like to have Kagan involved, has proposed alternatives for the court to consider, including the Windsor case. The administration says the court also could take up a suit pressed by same-sex couples in Vermont, Connecticut and New Hampshire or a California lawsuit by a federal court employee seeking to have her spouse enrolled on her government health-care plan.

The legal battle over DOMA doesn’t affect a separate provision in the law that says states can refuse to recognize same-sex marriages from other jurisdictions.

Supreme Court review of California’s Proposition 8 is less of a sure thing. Voters approved the initiative in 2008 as a way to reverse a decision by the California Supreme Court, which five months earlier had said the state constitution guaranteed the right to gay marriage.

Lawyers Olson and Boies, who sought constitutional protection for gay marriage, instead won a narrower ruling with limited applicability beyond California’s borders. A federal appeals court said Proposition 8 unconstitutionally stripped same-sex couples of a right that they had once enjoyed — and that heterosexual couples would continue to possess. Gay marriage is on hold in California while the litigation plays out.

Supporters of Proposition 8, led by former state Sen. Dennis Hollingsworth, are appealing to the Supreme Court. They argued that the lower court’s reasoning was a “suggestion that any experiment with the definition of marriage is irrevocable.”

Olson and Boies are urging the Supreme Court to reject the appeal, even as they said in court papers that it touches on “the defining civil rights issue of our time.”

Olson said in an interview that, should the court take up the case, he would make both California-specific arguments and broader contentions that could establish same-sex marriage rights nationwide. Marriage, Olson said, is a “fundamental right that cannot be taken away from citizens on the basis of their sex or sexual orientation.”

Some gay-rights advocates say they worry that a high court review of Proposition 8 might lead to a split decision, with the justices striking down DOMA while upholding the California initiative.

Justice Kennedy has been a champion of gay rights in past cases, writing the 2003 decision that said states can’t criminalize gay sex acts. Overturning the convictions of two men in Texas, he wrote that “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Kennedy, appointed by President Ronald Reagan in 1988, also wrote the court’s 1996 decision striking down a Colorado constitutional amendment that barred cities and counties from enacting anti-discrimination laws to protect gays.

Even so, he underscored in 2003 that he wasn’t passing judgment on gay marriage, saying the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

He and his colleagues might decide to bide their time to see whether more states legalize gay marriage. Lawmakers in New Jersey, Delaware, Hawaii, Illinois and Minnesota all plan to revisit the issue next year.

“You’ve got the political forces throughout the country very engaged in this,” Schacter said. “Things are changing very quickly. They may just continue to let this percolate.”

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