Updated 10:30 p.m., Friday, December 7, 2012
More than eight years after San Francisco’s mayor told city clerks to ignore state law and issue marriage licenses to same-sex couples, and four years after gays and lesbians first won and then lost the right to wed in California, the burning question of who can marry in the state – and perhaps the nation – has reached the U.S. Supreme Court.
After weeks of indecision, the justices granted hearings Friday to supporters of California’s Proposition 8, which defined marriage as the union of a man and a woman, and the 1996 federal law known as the Defense of Marriage Act. That law withholds federal recognition and spousal benefits, including joint tax filing, Social Security survivor payments and immigration sponsorship, from married same-sex couples. According to researchers, there may be 100,000 or more such couples in the nine states where same-sex marriage is legal, and in California, where 18,000 couples wed during a brief period of legality in 2008.
The cases will be heard in March or April, with rulings due by the end of June.
They will be argued before a court widely regarded as the most conservative in many decades – but one that includes justices who have ruled twice in favor of gay rights.
A 1996 ruling struck down Colorado’s prohibition of local gay-rights ordinances, finding that the ban was unconstitutionally based on antagonism toward gays and lesbians. In 2003, the court overturned state laws against gay sexual activity as a violation of privacy and personal autonomy. Both rulings were written by Justice Anthony Kennedy, who may hold the deciding vote in the marriage cases.
Neither of the earlier cases set standards for reviewing other antigay laws or mentioned same-sex marriage, which was not yet legal in any state.
Times have changed
But times, and public opinion, have changed – most visibly in Maine, Maryland and Washington, whose voters on Nov. 6 became the first in the nation to legalize same-sex marriage in statewide referendums.
One constitutional law professor, David S. Cohen of Drexel University in Pennsylvania, said Friday that the court “has to be aware of the trend, and will not rule against equality, knowing what the future holds.”
But the growing acceptance of same-sex marriage rights could also lead the justices to conclude that gays and lesbians are gaining enough support in the political system that they need no special judicial protection.
While the Supreme Court has agreed to decide the constitutionality of both Prop. 8 and the federal DOMA, it’s not clear that either ruling will resolve the broader issue of whether the Constitution’s guarantee of equal protection of the laws gives gays and lesbians equal marriage rights in all states.
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