Supreme Court weighs taking up fight over same-sex marriage
WASHINGTON (AP) - The running fight over gay marriage is shifting from the ballot box to the Supreme Court.
Three weeks after voters backed same-sex marriage in three states and defeated a ban in a fourth, the justices are meeting Friday to decide 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.
The court could announce its plans as soon as Friday afternoon. Any cases probably would be argued in March, 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 would 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.
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.
Yet some opponents of gay marriage say the issue is too important, and California is too large a state, for the court to take a pass.
"The question is whether there's a civil right to redefine marriage, as the California Supreme Court did. We don't think there is," said Brian Brown, president of the National Organization for Marriage.
Regardless of the decision on hearing the California case, there is widespread agreement that the justices will agree to take up a challenge to a part of the federal Defense of Marriage Act.
The law was passed in 1996 by overwhelming bipartisan majorities in the House and Senate and signed by President Bill Clinton. It defines marriage for all purposes under federal law as between a man and a woman and has been used to justify excluding gay couples from a wide range of benefits that are available to heterosexual couples.
Four federal district courts and two courts of appeal have overturned the provision in various cases on grounds that it unfairly deprives same-sex couples of federal benefits. The justices almost always will hear a case in which a federal law has been struck down.
The Obama administration broke with its predecessors when it announced last year that it no longer would defend the provision. President Barack Obama went further when he endorsed gay marriage in May.
Republicans in the House of Representatives stepped in to take up the defense of the law in court.
Paul Clement, the Washington lawyer representing the House, said the law was intended to make sure that federal benefits would be allocated uniformly, no matter where people live.
"DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage," Clement said in court papers.
The court has several cases to choose from, including that of 83-year-old Edith Windsor of New York. Windsor faces $363,000 in federal estate taxes after the death of her partner of 44 years in 2009. In two other cases, same-sex couples and surviving spouses of gay marriages in Connecticut, Massachusetts, New Hampshire and Vermont are seeking a range of federal benefits, including Social Security and private pension survivor payments, access to federal employee health insurance and the right to file a joint federal income tax return.
In the only instance in which a gay couple already is receiving federal benefits, federal court employee Karen Golinski in San Francisco has been allowed, under a court order, to add her wife to her health insurance coverage. That could be reversed if the Supreme Court upholds the marriage law provision.
No matter which case the court chooses, the same issue will be front and center - whether legally married gay Americans can be kept from the range of benefits that are otherwise extended to married couples.
Justice Elena Kagan strongly suggested in her Supreme Court confirmation hearings that she would not take part in a gay marriage case from Massachusetts because she worked on it while at the Justice Department. The Massachusetts case is one of only two cases that have been decided by a federal appeals court. Windsor's is the other.
Another case, from Arizona, has some similarities to the Defense of Marriage Act appeals. The 9th U.S. Circuit Court of Appeals, which invalidated Proposition 8 in California, struck down a state law that said only married state employees were eligible for health benefits and withdrew domestic partner benefits for unmarried state workers. Separately, the Arizona constitution bars same-sex marriage, so gay couples had no way to obtain the state benefits.
Three weeks after voters backed same-sex marriage in three states and defeated a ban in a fourth, the justices are meeting Friday to decide 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.
The court could announce its plans as soon as Friday afternoon. Any cases probably would be argued in March, 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 would 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.
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.
Yet some opponents of gay marriage say the issue is too important, and California is too large a state, for the court to take a pass.
"The question is whether there's a civil right to redefine marriage, as the California Supreme Court did. We don't think there is," said Brian Brown, president of the National Organization for Marriage.
Regardless of the decision on hearing the California case, there is widespread agreement that the justices will agree to take up a challenge to a part of the federal Defense of Marriage Act.
The law was passed in 1996 by overwhelming bipartisan majorities in the House and Senate and signed by President Bill Clinton. It defines marriage for all purposes under federal law as between a man and a woman and has been used to justify excluding gay couples from a wide range of benefits that are available to heterosexual couples.
Four federal district courts and two courts of appeal have overturned the provision in various cases on grounds that it unfairly deprives same-sex couples of federal benefits. The justices almost always will hear a case in which a federal law has been struck down.
The Obama administration broke with its predecessors when it announced last year that it no longer would defend the provision. President Barack Obama went further when he endorsed gay marriage in May.
Republicans in the House of Representatives stepped in to take up the defense of the law in court.
Paul Clement, the Washington lawyer representing the House, said the law was intended to make sure that federal benefits would be allocated uniformly, no matter where people live.
"DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage," Clement said in court papers.
The court has several cases to choose from, including that of 83-year-old Edith Windsor of New York. Windsor faces $363,000 in federal estate taxes after the death of her partner of 44 years in 2009. In two other cases, same-sex couples and surviving spouses of gay marriages in Connecticut, Massachusetts, New Hampshire and Vermont are seeking a range of federal benefits, including Social Security and private pension survivor payments, access to federal employee health insurance and the right to file a joint federal income tax return.
In the only instance in which a gay couple already is receiving federal benefits, federal court employee Karen Golinski in San Francisco has been allowed, under a court order, to add her wife to her health insurance coverage. That could be reversed if the Supreme Court upholds the marriage law provision.
No matter which case the court chooses, the same issue will be front and center - whether legally married gay Americans can be kept from the range of benefits that are otherwise extended to married couples.
Justice Elena Kagan strongly suggested in her Supreme Court confirmation hearings that she would not take part in a gay marriage case from Massachusetts because she worked on it while at the Justice Department. The Massachusetts case is one of only two cases that have been decided by a federal appeals court. Windsor's is the other.
Another case, from Arizona, has some similarities to the Defense of Marriage Act appeals. The 9th U.S. Circuit Court of Appeals, which invalidated Proposition 8 in California, struck down a state law that said only married state employees were eligible for health benefits and withdrew domestic partner benefits for unmarried state workers. Separately, the Arizona constitution bars same-sex marriage, so gay couples had no way to obtain the state benefits.
I think the court will take up the larger issue here. I think that DOMA will fall and those states that have amendments banning gay marriage will have to change.
In their zeal to gain societal acceptance (not that you can legislate attitudes anyways), homosexuals have overlooked one glaring fact - marriage laws in this country are a complete mess. Â You see, a commitment is between two individuals. Â You don't need third-party approval. Â Marriage is a legal contract between government and you; you are, in effect, inviting the government in with wide open arms to interfere with your life.
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The divorce rate for heterosexuals is over 50% (up to 72% for third marriages) - I can't imagine that it will be much better for gays. Â When they already get the benefits of domestic partnerships (such as health insurance), the risks of personal wealth destruction and other negatives far outweighs any benefit that they will see.
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So in short, I support the right for gays to marry, but I think that they are stark raving mad for wanting to do so.
 @UtterReality You are right in some ways. Some people jump into marriage way too fast, but for some people who have been together 20 or more years and own property together, it might be best to get married. You just never know who might get sick or die and greedy family members might just try to challenge the fact that you had been a couple all those years and not just room mates.
@UtterReality it's not what you do with your rights, it's that you have them in the first place. For example, my wife has the right to own a firearm. I doubt she ever will but she has that right. Gay people only want to have the same rights as everyone else.
California is not the largest state in the US, not even in the lower 48. Who ever wrote this article needs a course is geography.
 @Crimsonkid By largest I believe they are talking population of which California has the largest population.  Nothing in politics is based off land mass.
"Three weeks after voters backed same-sex marriage in three states and defeated a ban in a fourth, the justices are meeting Friday to decide whether they should deal sooner rather than later with the claim that the Constitution gives people the right to marry regardless of sexual orientation."
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The Constitution doesn't give anyone their rights - it protects them.  Rights are yours.  Fight for them or delegate others to do the same, but you are responsible for them.  The issue has never been whether or not you have the right to marry.  Find a third person you trust and admire, ask them to marry you, done.  This is about whether or not society will grant benefits the same as heterosexuals.  Marriage is the wrong term.  Benefits is the right term.
 @ETSubmariner You're completely wrong. You have no rights that the constitution doesn't give you. Remember the "Bill of Rights"?
 @NaviDog  @ETSubmariner Not necessarily. The constitution only protects you from the government infringing on your rights. Rights are inalienable. They are ingrained within you, the constitution only asserts that and prevents the government from legislating or stripping them away from you.
11 states vs. 39 states. Good luck! Until it is the law of the land, bring on the lawsuits. After this, let's take on the world. We don't care what you believe in, gay marriages is the right thing for this world. We will not stop until the entire world is happy and gay.
 @STK A little melodramatic maybe?
In 30 years, kids won't believe there was a time this was even a discussion. 20 if we're lucky.
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@MVDad Kids, how can gay couples have kids?
@Crimsonkid So what are you getting at?
 @Crimsonkid  @MVDad Magic?
@Smashquail @Crimsonkid @MVDad - Crimson kid is purposefully playing stupid. Don't know why. Don't care why.
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 @David Campbell Renault 5 is not a great car. Stay in Europe until you have something worthwhile to say. We don't want your kind here.
@Smashquail @David Campbell they need a button to report crap like this.
its probably a bit early, but it's going to happen. America is about equality. We used to be leaders in equality, now we can follow along in step with the rest of the world. Whatever it takes.
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@NaviDog @calapete - Or is it only one set of morally minatures that bring up red herrings in order to denigrate something they don't agree with?
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Dead people can't give legal consent.
Animals can't give legal consent.
Cars, Rocks, buildings, etc. can't either.
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In too many cases in American history, attempts at polgyamy were done forcefully or only at the hand of a cult leader who brainwashed/groomed his followers into believing that forcing a 14 year old girl to be the 3rd wife of a 57 year old man was 'good'. That's one reason polygamy isn't legal - you can't have brainwashed people giving clear legal consent. The other primary reason that polygamy is illegal is RELIGION. Yes. The Christian religion who's tenant is one man, one woman. They've had exclusive control of soo much of society for so long that many within this religion equate thier rules with what should and shouldn't be legal in America - regardless of what religious beliefs others may have.  So if you want to continue to whine about not being able to marry six people, talk to them, not the gays. It's not the gays that are stopping you.  It's the Christians who are trying to prevent gays from marrying that are stopping you from marrying 6 people. (Don't worry, yes, I'm Christian - although I do have problems with Christians who think they have the right to force everyone else to follow only 'thier' rules).
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And only morally minatures who are stuck in the 50's with attitudes that something they don't agree with is 'sexually deviant' simply because they don't like what 'those people' do or who they love. Those folks who've matured and are thoughful people who allow others to be different as long as it's otherwise legal and consentual don't think they're 'sexually deviant'.   Although those folks do have a medical diagnosis for people who constantly demand that a specific group is 'sexually deviant' when no one else considers them so. You might want to go see someone if you find yourself in that group.
I remember all of the arguements for voting no on 74 during the runup to the election; all of them were complete fallacies. One guy even told me gay marriage would lead to fathers marrying their daughters. The fact that it even needs to be voted on for gays to marry is completely a waste of time. Im a straight man comfortable being around gays, I do not care what they do in their own homes. Im sure the gays dont care what I do behind closed doors with a woman, let this stupid issue die.
@northwestsurfer I'm a straight man who is comfortable around gays. I just find them to be completely obnoxious in their gayness.
 The Supreme Court should rule it is a states rights issue.  On benefits for federal workers it should rule no.
@Maynard G Krebbs they already ruled that marriage is a right. It's not up to the states. Benefits should go to all those who qualify regardless of orientation. Married...yes equals benefits.
 @Maynard G Krebbs Why should Federal Workers be excluded? Are you are saying you are against this?Â
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@NaviDog @Susabelle @Maynard G Krebbs -- Come on Navidog, no one other than intolerant folks who are at minimum borderline bigots still believe that 'gay' is sexual perversion.  Not one credible medical association considers it anything less than normal. You don't have to like that everyone else thinks it's normal, but please, stop throwing around demeaning phrases like that. The rest of us really don't want to hear the ravings of someone who can't deal with society changing around them.
 @NaviDog  @Maynard G Krebbs Hate to break it to you, but it's already recognized in this state. If this frightens you, maybe you should talk to someone about that. Perversion is your fear speaking, not reality. By the way, I'm not gay so if you think I'm defending a personal lifestyle I'm not but I really dislike bigots.
I honestly cannot understand why this is still an issue or why people try so hard to block gay marriage. Who cares? How does it hurt me if a gay couple gets married? Did it hurt them when I got married? They have that right to commit to love legally the same way I did. Our society as a whole needs to turn towards love and inclusion, not hate and division. And if someone can't manage that then the least they can do is just get out of the way so people can be happy.
My neighbor still has his reject 74 sign up. I think it takes someone with a lot of hardness in their heart to do that.
There should be one law and one law only concerning "marriage" in our country. It should say..." A legal and binding marriage is between two or more consenting adults." Period. No stipulations. No bias. NO if, ands, or buts. It's that simple. To have it any other way would be bigotry, and bigotry will not be tolerated.
 @DrAmerika Why are you not including polygamy?  Will that lead to fathers marrying their daughters or something?
@FormerMarineSgt I could care less about polygamy. If you want multiple wives and they agree to the situation then so be it. However don't come crying to me when you are on the hook for multiple divorces.
@DrAmerika - while I am not supporting or denying polygamy, there's a group of anti-gay marriage folks who throw this canard out there all the time.
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If you don't forcefully support polygamy but you do support gay marriage, then your a bigot, your intolerant, your whatever the person wants to push on you....
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The problem is that almost never actually want polygamy to be approved and would be screaming just as harshly against it as they do against gay marriage. They just think they're clever trying to trap someone so that they can demean them.
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It's so phony and transparent that it's beyond pathetic.Â
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If these folks actually wanted it, they'd pay thier dues, they'd do the hard work to get it legalized. Until then, well, they're exposed for who they are.
Re-read my comment.
 @nomad I see a lot of them still up, in public medians and on sidewalks. I would think it would be littering at that the group that provided them should be charged to clean them up.
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But on topic, they definitely should wait on this decision. It's best to let the states work it out first, until a healthy majority of America has jumped on board, otherwise, as the article states, it would create a political firestorm.
@IlBrutto13 @nomad The supreme Supreme Court justices are appointed for life and can not be fired except under very serious circumstances. They structured the court this way so that they can rule as they see fit, with out regard for any political ramifications their decision may have.
 @IlBrutto13  @nomad
 Politics schmolitics. This is about the rights of a certain segment of Americans being denied to them purely on the basis of what is (or is not) dangling between their legs. The SCOTUS is *supposed* to be an unbiased judiciary that decides the constitutional merit of laws, not a political bellweather. Political ramifications be damned, this is an issue of discrimination, and the Court needs to hear it.
@NaviDog @Mikeftm @IlBrutto13 @nomad - how about we start with you no longer shoving your intolerance in everyone else's face?Â
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And let's get real.Â
1) Gay has not been considered a sexual perversion for many years. You may not like it, but let's get honest about that part ok?
2) Unlike you I don't compare illegal acts with legal acts.  Gay sex is legal between consenting adults. The 'sexual perversion' list that usually gets thrown around by people who use that term about gays is nearly all illegal and those things that aren't illegal, as long as it's consentual - why do you care if it happens? Or are you one of those 'smaller less intrusive government - EXCEPT when it comes to things I want to force others to behave like'?)
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 @NaviDog  @Mikeftm  @IlBrutto13  @nomad Well, in your case it would be a welcome change...