December 8, 2012

Supreme Court will hear gay marriage cases

The Associated Press

WASHINGTON — The Supreme Court plunged into the contentious issue of gay marriage Friday when it agreed to take up California's ban on same-sex unions and a separate dispute about federal benefits for legally married gay couples.

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In this file photo from Aug. 12, 2010, gay couple Tara Walsh, left, and Wen Minkoff embrace outside City Hall in San Francisco. The U.S. Supreme Court decided Friday, Dec. 7, 2012, to hear the appeal of a ruling that struck down Proposition 8, the state’s measure that banned same sex marriages. The highly anticipated decision by the court gives the justices the chance to say by late June whether gay Americans have the same constitutional right to marry as heterosexuals. (AP Photo/Ben Margot)

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People celebrate after learning same sex marriage had passed at the Mainers United for Marriage party at the Holiday Inn by the Bay Tuesday, November 6, 2012. The Supreme Court will take up California's ban on same-sex marriage, a case that could give the justices the chance to rule on whether gay Americans have the same constitutional right to marry as heterosexuals.

Gabe Souza / Staff Photographer

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The court's action gives the justices the chance to say by late June whether gay Americans have the same constitutional right to marry as heterosexuals. Several narrower paths also are open to the justices as they consider both California's voter-approved Proposition 8 and the provision of the federal Defense of Marriage Act that denies to legally married gay Americans the favorable federal tax treatment and a range of federal health and pension benefits given to heterosexual couples.

The court is embarked on what could be its most significant term involving civil rights in decades. In the area of racial discrimination, the justices already have agreed to decide cases on affirmative action in admission to college and a key part of the Voting Rights Act. The gay marriage cases probably will be argued in March and decisions in all the court's cases are likely by the end of June.

The order from the court extends a dizzying pace of change regarding gay marriage that includes rapid shifts in public opinion, President Obama's endorsement in May and votes in Maine, Maryland and Washington in November to allow gay couples to marry.

Yet even as gay marriage is legal, or soon will be, in nine states -- Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont are the others -- and the District of Columbia, it is banned by the state constitutions of 31 others. Federal courts in California have struck down the state's constitutional ban on same-sex marriage, but that ruling and thus gay unions remain on hold while the issue is being appealed.

The high court's decision to hear the federal benefit question was a virtual certainty because several lower courts struck down the provision of the 1996 law and the justices almost always step in when lower courts invalidate a federal law.

There is nothing that compelled a similar response from the court in the case over California's Proposition 8, the state constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry.

Indeed, the gay marriage supporters who prevailed in the lower courts urged the Supreme Court to stay out of the case and allow same-sex unions to resume in the nation's largest state.

Even some gay rights activists worried that it was too soon in the evolution of views toward same-sex marriage to ask the justices to intervene and declare that same-sex couples have the same right to marry as heterosexuals.

But Theodore Olson, the Washington lawyer who represents Californians who sued over Proposition 8, said he will argue that there is a "fundamental constitutional right to marry for all citizens."

Opponents of gay marriage said Friday they are heartened by the Supreme Court's action.

"We believe that it is significant that the Supreme Court has taken the Prop 8 case. We believe it is a strong signal that the court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect," said John Eastman, chairman of the National Organization for Marriage and a law professor at Chapman University in Orange, Calif.

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