The Supreme Court is virtually certain to take up at least one of the cases involving the 1996 Defense of Marriage Act.(Photo: Saul Loeb, AFP/Getty Images)
WASHINGTON -- The Supreme Court wades into a wide array of same-sex
marriage cases Friday, and its selections could put an exclamation point
on a year of unprecedented progress for the gay-rights movement.
The
nine justices must decide which case or cases to consider from among
seven on their plate, from the right to marry in California to the
receipt of federal marriage benefits from coast to coast.
While
oral arguments and court rulings would be months away, just the choices
made in Friday's closed-door conference could doom California's troubled
Proposition 8 ban on same-sex marriage or put the federal Defense of
Marriage Act on the defensive.
All lower court decisions thus far
have upheld the rights of gay and lesbian plaintiffs. Rulings that the
high court refuses to reconsider will stand. Any it schedules for early
next year would have recent case law stacked in its favor.
The
court is virtually certain to take up at least one of the cases
involving the 1996 Defense of Marriage Act, which defined marriage in
federal statutes as between a man and a woman. That's because the lower
courts from California to New England have struck down a key section of
the law, inviting a Supreme Court decision. The impact of that section
has been to deny federal assistance, such as tax exclusions and Social
Security survivor benefits, to gay and lesbian couples.
Less
certain is whether the justices will consider California's Proposition
8, approved by voters in 2008 but since declared unconstitutional by two
federal courts. If they don't, gays and lesbians in the nation's
largest state will be able to marry again, as 18,000 couples did before
the referendum was passed.
The flurry of court action comes just
three weeks after voters approved same-sex marriage initiatives in
Maine, Maryland and Washington, bringing to nine the number of states
where those unions are legal, along with the District of Columbia.
Earlier this year, President Obama declared his support for gay
marriage, and Attorney General Eric Holder announced the administration
no longer would defend the Defense of Marriage Act.
"2012 has
already been the watershed year in the history of this movement," says
Chad Griffin, president of the Human Rights Campaign. a gay and lesbian
advocacy group. "It's so clear where this country's headed on this
issue."
The Supreme Court is closely divided, however, with five
conservative justices generally holding sway. To continue their
momentum, gay-rights groups will need one or more of those justices to
uphold the lower court rulings. Organizations opposed to gay marriage
don't think that will happen.
The high court's recent rulings in
gay rights cases "do not indicate that the court is anywhere near going
in a new direction - to require government endorsement of alternative
lifestyles," says Andrew Pugno, general counsel for ProtectMarriage,
which is challenging the court decisions that threw out Proposition 8.
"Recent cases have only said that you cannot criminalize or
discriminate, you cannot target homosexuals."
For the court,
taking on same-sex marriage will mean a 2012-13 term as controversial as
last year's, which was headlined by the 5-4 decision upholding Obama's
landmark health care law. Already, the justices have agreed to consider
challenges to college affirmative action programs and federal oversight
of voting laws in states with a history of racial discrimination.
The
gay-rights cases hinge on the Constitution's guarantee of equal
protection. Gay-rights groups say the the federal and state laws in
question deny that protection to gays and lesbians seeking the same
marriage rights as heterosexuals. Those on the other side say there is
no constitutional right to same-sex marriage, and states cannot obligate
the federal government to bless it under more than 1,100 federal
statutes.
Federal district and appeals courts have sided with the
laws' opponents, ranging from an 83-year-old lesbian widow in New York
to a 50-year-old employee of the 9th Circuit Court of Appeals in
California.
Since the Justice Department no longer has its back,
the Defense of Marriage Act now is defended by the leadership of the
Republican-majority House of Representatives.
"The court will want
to take this issue and get it resolved, one way or another," says Paul
Clement, a former solicitor general under President George W. Bush, who
represents the so-called Bipartisan Legal Advisory Group.
Clement's
predecessor as solicitor general, conservative stalwart Theodore Olson,
now represents the gay and lesbian plaintiffs fighting California's
Proposition 8. He wants the lower court ruling there left alone, thereby
legalizing same-sex marriage once again in the nation's largest state
and doubling the number of Americans living in states that permit it.
"The
question whether the states may discriminate against gay men and
lesbians in the provision of marriage licenses," Olson wrote in his
brief to the high court, "is the defining civil rights issue of our
time."
USA Today