Is America ready to treat same-sex married couples like everyone else under the law? That's the question the Supreme Court is grappling with today. SCOTUS is looking at several gay-marriage cases, and depending on which it decides to hear, the U.S. could be much closer to granting gay married couples the same federal rights as their hetero-married neighbors. There's a lot of misinformation floating around about what the Supreme Court can actually do — so to help clear the air, here are four things you need to know about today's deliberation on which cases to hear. (The results could be disclosed as early as this afternoon):
1. The Supreme Court isn't deciding whether to legalize gay marriage nationwide
Contrary to what some news outlets are reporting — like the The Baptist News, which claims this could be the Roe v. Wade of gay marriage — the Supreme Court isn't deciding whether to legalize gay marriage nationwide. Instead, it's looking at seven cases that address three issues: Same-sex marriage rights in California, health care for domestic partnerships among state employees in Arizona, and the constitutionality of the Defense of Marriage Act (DOMA), a 16-year-old federal law that addresses whether gay couples married under state law can benefit from the same federal rights as hetero couples.
Even if DOMA is found to be unconstitutional in one of those cases, it will only affect same-sex couples that are already married. And if Proposition 8 (the amendment that stopped couples in California from getting married) is overturned, it will allow couples in California to (once again) get married. But it won't affect other states, unless other courts decide to apply the Supreme Court's rationale to their own rulings.
2. For gay marriage advocates, it'd be better if the Supreme Court doesn't take certain cases
As I reported in Mother Jones, it's a good thing for advocates of equal marriage if the Supreme Court doesn't take up some of these cases. If the high court declines to take up the Proposition 8 case, for example, then the federal appeals court ruling will stand and gay couples in California will again be able to get married after a four-year standstill.
A similar argument holds true for the other cases. In Arizona, there is a preliminary injunction that allows state employees to extend health benefits for domestic partners, and if the Supreme Court declines to hear that case, the injunction will hold while the lower courts duke it out. DOMA will also be struck down in certain Northeastern states if the Supreme Court declines to hear those cases.
3. Justice Elena Kagan might have to recuse herself
Deborah L. Jacobs writes in Forbes that the case dealing with whether DOMA is unconstitutional in Massachusetts is the one the court is most likely to take up. And if that happens, Kagan may not be allowed to weigh in because she worked on the case back when she was Solicitor General. If Kagan doesn't participate in the debate, Jacobs says that it "could be problematic because if there is a tie, the lower court's ruling would remain standing."
Chris Geidner of BuzzFeed points out that if the Supreme Court only decides to pick one DOMA case, it won't necessarily be seen as the court picking one argument over another. Instead, it's probably a sign that the court wants to hear a case for which Kagan doesn't have to recuse herself.
4. Gay marriage advocates are optimistic
Brian Moulton, legal director at the Human Rights Campaign, told me that "there is no worst-case scenario. If the court does not take up the Prop 8 case, marriage returns to California; if it does, the Court may still conclude Prop 8 is unconstitutional, or go further and impact many more states."
And according to Evan Wolfson, the founder and president of Freedom to Marry, no matter what happens today, the work for equal marriage activists isn't over: "Whichever case or cases the Supreme Court decides to hear... we must make the same strong case for the freedom to marry in the court of public opinion as our advocates are marking in the courts of law."
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