Post by FWS on Dec 8, 2012 0:34:25 GMT -6
High Court Will Rule on Gay Marriage
By JESS BRAVIN
Wall Street Journal
December 7, 2012
WASHINGTON—The Supreme Court entered the debate over gay marriage, saying it would hear cases challenging a federal law and a California law that limit the rights of same-sex couples.
The move Friday means that a defining legal moment is set to come by next June, after a year in which gay marriage assumed even greater prominence in the national debate and social acceptance widened. President Barack Obama in May said he personally believed gay couples should have the right to wed, becoming the first sitting president to take that stand.
In November, Maine, Maryland and Washington state became the first states to approve gay marriage at the ballot box, joining six other states and the District of Columbia that had authorized the unions through legislative acts and judicial rulings.
The decision to take both cases—including one involving California's voter-approved ban on gay marriage—suggests the justices are ready to tackle the issue fully.
The first case before the high court concerns the Defense of Marriage Act, a 1996 federal law denying benefits to same-sex spouses. Two federal appeals courts have found it unconstitutional, ruling that no legitimate purpose justifies penalizing lawfully married people because they are gay.
Of the four cases presented to it involving the 1996 law, the Supreme Court selected just one to be argued, that of Edith Windsor of New York. Her spouse, Thea Clara Spyer, died in 2009 after more than four decades together, and she was assessed with a $363,000 estate tax bill she wouldn't have received had she married a man.
The second case concerns California's Proposition 8, a 2008 voter initiative that amended the state constitution to limit marriage to the union of a man and a woman.
The initiative came on the heels of a state supreme court decision finding that the California Constitution's equal-protection provisions allowed no distinction in marriage privileges between same-sex and opposite-sex couples.
The San Francisco-based Ninth U.S. Circuit Court of Appeals found Proposition 8 unconstitutional because it withdrew rights from a minority group. Some 18,000 same-sex couples married in California in 2008 before Proposition 8 was passed.
Adding to the drama, both the Obama administration and the state of California agree with plaintiffs that the antigay marriage laws are unconstitutional and have declined to defend them in court. Advocates of the laws have stepped in to defend them, but the Supreme Court indicated that their standing to do so could be in doubt.
In the Defense of Marriage Act case, the Republican-controlled House of Representatives has stepped in to defend the statute, hiring Paul Clement, a former solicitor general in the George W. Bush administration, as its lawyer.
"When Thea and I met nearly 50 years ago, we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay married couples should be treated equally," said Ms. Windsor.
A supporter of same-sex marriage holds a flag that depicts two wedding bands outside the Supreme Court in Washington last month.
Opponents of gay marriage said the Supreme Court's decision would be a chance to put the brakes on lower courts.
Andy Pugno of ProtectMarriage.com, the group that put Proposition 8 on the ballot and is defending it in court, said the Supreme Court shouldn't be swayed by public opinion. "We are glad to finally have an opportunity to have a fair hearing after having been through the lower courts where clearly the deck was stacked against us," he said.
While the cases involve same-sex marriage, they don't directly raise the question of whether the U.S. Constitution's guarantees of equal protection, due process and individual liberty mean that same-sex couples have a fundamental right to marry.
Instead, the gay marriage issue is arriving at the high court in increments. The Defense of Marriage Act case tests the power of the federal government to reject a marriage authorized by states, which historically have held sway over family law.
Changing Perspectives on Gay Marriage
The Proposition 8 case in California also doesn't necessarily force courts to decide on a fundamental gay-marriage right. A federal appeals court in San Francisco struck down the proposition on narrower grounds, saying the state couldn't withdraw a previously recognized right from a minority that has suffered discrimination.
The Supreme Court's liberal wing—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—is likely to treat the Defense of Marriage Act with skepticism. Conservative Justice Antonin Scalia is expected to be more deferential to the law, probably joined by Justice Clarence Thomas. Justice Samuel Alito also typically takes conservative positions on social issues.
A larger question mark hangs over Chief Justice John Roberts, who in cases such as the June decision on President Obama's health-care law has been sensitive to the court's long-term interests in maintaining credibility with the public and other branches of government.
While 41 states either ban gay marriage or have no provisions to recognize it, public opinion trends suggest growing acceptance, particularly among younger Americans.
If Chief Justice Roberts votes with the opponents of gay marriage, the deciding voice almost certainly will be that of Justice Anthony Kennedy, who has been the court's most impassioned defender of gay rights.
In 1996—the same year the Defense of Marriage Act was passed—an opinion by Justice Kennedy struck down Colorado's Amendment 2, a voter initiative that barred state and local government from protecting gays from discrimination.
Seven years later, in Lawrence v. Texas, the court overruled its own 1986 precedent to strike down a state law criminalizing gay sex. Justice Kennedy said liberty presumes that people are entitled to autonomy in "certain intimate conduct."
In dissent, Justice Scalia accused the majority of signing on to the "so-called homosexual agenda," and he said its reasoning would likely lead to recognition of same-sex marriage.
Gay marriage has fared better of late with courts and voters.
September 1996: President Bill Clinton signs the Defense of Marriage Act (DOMA) passed by bipartisan majorities in the House and Senate. It forbids federal recognition for same sex marriages.
November 2008: California voters narrowly pass Proposition 8, barring same-sex marriage in the state.
February 2012: Federal appeals court in San Francisco strikes down Proposition 8 in 2-1 vote.
May 2012: President Barack Obama says he personally favors gay couples having the right to marry.
Oct. 18, 2012: Federal appeals court in New York strikes down the DOMA in 2-1 vote.
Nov. 6, 2012: Voters in three states—Maryland, Maine and Washington state—approve gay marriage. Minnesota voters reject an attempt to ban gay marriage.
Dec. 7, 2012: U.S. Supreme Court says it will accept both the DOMA and Prop 8 cases.
