y accepting two cases on same-sex marriage — Hollingsworth v. Perry and U.S. v. Windsor — the Supreme Court has taken center stage in the ongoing debate over gay rights. In recent years, popular support for same-sex marriage has swelled with astonishing speed, upending the politics of gay rights so dramatically that President Obama "evolved" to support gay marriage before his first term was even up. "Quite literally, the opposition to gay marriage is dying," said conservative columnist George Will on ABC's This Week. "It's old people." Enter the nine justices of the Supreme Court, who could either disrupt the movement's momentum, bestow the blessing of the country's highest court, or forge a middle path between the two.
Gay rights advocates are cautiously optimistic. That's largely because Anthony Kennedy, the court's conservative-leaning swing vote, is a strong supporter of gay rights. In 1996, he authored a decision that nullified a Colorado law that repealed gay rights ordinances, saying that the law was "born of animosity" toward gays, and that the Constitution "prohibits laws singling out a certain class of citizens for disfavored legal status or general hardships." In 2003, he penned the decision striking down state anti-sodomy laws as unconstitutional, arguing that gays "are entitled to respect for their private lives." With four liberal justices presumably in tow, it's easy to imagine Kennedy anchoring a decision that comes down on the side of marriage equality.
But how far Kennedy & Co. will go is another matter. In U.S. v. Windsor, the court will weigh the constitutionality of the Defense of Marriage Act, which forbids the federal government from recognizing same-sex marriages performed in states where such unions are legal. "Kennedy is likely to agree" with those seeking to overturn DOMA, says David G. Savage at the Los Angeles Times, though doing so would represent only a relatively modest ruling allowing gay couples to enjoy the usual government benefits of marriage, such as filing joint tax returns. Such a ruling would leave it to the states to decide whether same-sex marriages are legal.
The case with bigger constitutional implications is Hollingsworth v. Perry. At issue is the legality of Proposition 8, a referendum that banned same-sex marriages in California. The lawyers representing the gay-rights side are seeking a much broader ruling that establishes a constitutional right to same-sex marriage. And it's unclear whether Kennedy, or even the court's liberals, are willing to take that leap.
On the one hand, "the court gave itself the chance to issue a sweeping ruling that would cast aside bans on same-sex marriage nationwide," says Adam Liptak at The New York Times. Kennedy's passionate defense of the "intimate and personal" choices of gays suggests he's highly skeptical of any government impediment to marriage.
However, constitutional scholars say the court usually "responds slowly to broad social movements that implicate changes in civil rights," says Daniel Fisher at Forbes. Many argue that the countrywide legalization of same-sex marriage is inevitable, and polls show that a slight majority of Americans would be in favor of such a move. Still, gay marriage is legal in only nine states and the District of Columbia. A full 30 states have laws or constitutional amendments banning same-sex marriage. In past landmark civil rights decisions, the states perpetuating discrimination were in a clear minority, says Mark Sherman at The Associated Press:
Thirteen states still had laws against sodomy when the court said in 2003 that states have no right to intrude on the private, personal conduct of people, regardless of sexual orientation.
Interracial marriage still was illegal in 16 states in 1967 before the high court outlawed race-based state marriage bans.
In 1954, when the court issued its landmark decision in Brown v. Board of Education, 17 states had formally segregated school systems.
As a result, there's a good chance of a split decision in which the court strikes down DOMA and upholds the California electorate's right to decide for itself. Even gay rights advocates acknowledge that such a decision could help the movement in the long run, depriving opponents of the argument that gay marriage had been imposed on the country by judicial fiat.
Of course, there is also a chance that the Supreme Court could rule on very narrow grounds, leaving few, if any, constitutional repercussions in its wake. Though it seems unlikely that the court would take two blockbuster cases only to send them back down to lower courts over virtual technicalities.
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