In a historic step that rivals other Supreme Court moves into the center of America’s cultural character, the justices on Friday agreed to consider the constitutionality of federal and state laws that deny marriage rights or marital benefits to same-sex couples. But the move carried with it the potential for stopping short of settling the core constitutional issue.
The court’s orders Friday afternoon said the justices would hear claims that states do not violate the Constitution when they allow marriage only for one man and one woman, and that the federal government does violate the Constitution when it denies benefits to same-sex couples who are already legally married under state laws. Those are the key questions on gays’ and lesbians’ right to marry.
At the same time, however, the court gave itself the option of postponing answers to those key questions. It raised a series of procedural issues that could mean that neither of the cases it granted would provide a definitive outcome. Which way it ultimately would choose to move is not predictable at this point. (Constitution Daily on Monday will provide a fuller analysis of what the court has said it would do.)
Last summer, as cases on same-sex marriage were reaching the Supreme Court, the justices were told that what was at stake was “the defining civil rights issue of our time.” That was a comment from two lawyers whose own fame–and past differences in court–have added to the high visibility of those cases: Theodore B. Olson and David Boies.
Once the opposing lawyers in the court’s celebrated decision in Bush v. Gore, settling a presidential election, Olson and Boies have joined forces to help speed up an already unfolding timetable of court rulings on whether gays and lesbians will be able to marry. They won one of the most sweeping rulings ever issued by a court, when a federal judge in San Francisco two years ago struck down California’s ban on such marriages, “Proposition 8.”
But, years before those titans of the bar joined the fight, lawyers in gay rights organizations had been pressing the marriage issue in their own lawsuits. They, too, saw it as a defining issue of the day. They actually had two parallel campaigns going in the courts: open marriage to homosexual partners, and open the military to gays and lesbians, who could serve without hiding their sexual identities.
As the court now moves into the marriage issue, the fight over gays in the military already has been won. Congress repealed that ban, and the services are now welcoming gays and lesbians without trying to regulate their private lives.
There is virtually no chance that Congress–at least Congress as presently constituted–would pass legislation to open marriage to homosexuals on a nationwide basis. That is simply not politically possible and, besides, there is a question about whether Congress could impose such a requirement upon states, which traditionally have defined who can marry.
And, since the politics of gay rights do not suggest that a constitutional amendment to permit same-sex marriages will even be attempted, the path to such marriages remains either in state legislatures, with the voters of the states, or with the courts.
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The campaign to pursue same-sex marriage through the courts has been marked, at times, by disagreements about what was the best strategy, and what was the best time to try to advance the cause. While supporters of same-sex marriage have had some control over the process, it has not been entirely a matter of their choice. Rigorous efforts challenging same-sex marriage have been made, in politics and in the courts, and have succeeded most of the time with the voters.
Still, it has been widely assumed that, sooner or later, the issue probably would be resolved as a constitutional matter by the Supreme Court. It has had rulings on gay rights in recent years, but it has never issued a full-scale ruling on the issue of marriage for homosexual couples.
Whether the review that is now beginning will lead to a sweeping new ruling, or only one that is limited in scope, will only become clear as the time for decision approaches.
Since the same-sex marriage cases began arriving at the court last summer, a total of 11 have now been placed on the docket. At a conference Friday morning, the court had before it 10 of those petitions, and the justices were examining them to decide which issues they were ready to confront.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.