November 30, 2012

Supreme Court may consider constitutionality of gay marriage

There was no announcement about the court's plans on Friday, but they could announce their intentions Monday.

The Associated Press

WASHINGTON  — The running fight over gay marriage is shifting from the ballot box to the Supreme Court.

click image to enlarge

This Oct. 18, 2012 file photo shows Edith Windsor interviewed at the offices of the New York Civil Liberties Union, in New York. The fight over gay marriage is shifting from the ballot box to the Supreme Court. Three weeks after voters in three states backed it, the justices meet Friday to decide whether they should deal sooner rather than later with the idea that the Constitution gives people the right to marry regardless of a couple's sexual orientation. (AP Photo/Richard Drew, File)

Three weeks after voters backed same-sex marriage in three states and defeated a ban in a fourth, the justices met Friday to discuss whether they should deal sooner rather than later with the claim that the Constitution gives people the right to marry regardless of sexual orientation.

The court also could duck the ultimate question for now and instead focus on a narrower but still important issue: whether Congress can prevent legally married gay Americans from receiving federal benefits otherwise available to married couples.

There was no announcement about the court's plans on Friday. The next opportunity for word on gay marriage cases is Monday, although the justices also could put off a decision until their next private meeting in a week's time. That will be their last meeting until January.

Any cases would be argued in March or April, with a decision expected by the end of June.

Gay marriage is legal, or will be soon, in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — and the District of Columbia. Federal courts in California have struck down the state's constitutional ban on same-sex marriage, but that ruling has not taken effect while the issue is being appealed.

Voters in Maine, Maryland and Washington approved gay marriage earlier this month.

But 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent example in May. In Minnesota earlier this month, voters defeated a proposal to enshrine a ban on gay marriage in that state's constitution.

The biggest issue the court could decide to confront comes in the dispute over California's Proposition 8, the constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry. The case could allow the justices to decide whether the U.S. Constitution's guarantee of equal protection means that the right to marriage cannot be limited to heterosexuals.

A decision in favor of gay marriage could set a national rule and overturn every state constitutional provision and law banning same-sex marriages. A ruling that upheld California's ban would be a setback for gay marriage proponents in the nation's largest state, although it would leave open the state-by-state effort to allow gays and lesbians to marry.

In striking down Proposition 8, the 9th U.S. Circuit Court of Appeals crafted a narrow ruling that said because gay Californians already had been given the right to marry, the state could not later take it away. The ruling studiously avoided any sweeping pronouncements.

But if the high court ends up reviewing the case, both sides agree that the larger constitutional issue would be on the table, although the justices would not necessarily have to rule on it.

Throughout U.S. history, the court has tried to avoid getting too far ahead of public opinion and mores. The high court waited until 1967 to strike down laws against interracial marriage in the 16 states that still had them.

Some court observers argue that the same caution will prevail in the California case.

"What do they have to gain by hearing this case? Either they impose same sex marriage on the whole country, which would create a political firestorm, or they say there's no right to same-sex marriage, in which case they are going to be reversed in 20 years and be badly remembered. They'll be the villains in the historical narrative," said Andrew Koppelman, a professor of law and political science at Northwestern University. Koppelman signed onto a legal brief urging the justices not to hear the California case.

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