Same-Sex Issue Pushes Justices Into Overdrive


Published: December 9, 2012

“WASHINGTON — Life moves fast these days, and so does the law.

In the civil rights era, the Supreme Court waited decades to weigh in on interracial marriage. On Friday, by contrast, the court did not hesitate to jump into the middle of one of the most important social controversies of the day, agreeing to hear two cases onsame-sex marriage.

By taking both, the court gave itself the chance to issue a sweeping ruling that would cast aside bans on same-sex marriage nationwide. But the speed with which the court moved also raised the possibility of a split decision, one that would provide federal benefits to same-sex couples married in states that allow such unions but would permit other states to forbid gay and lesbian couples from marrying.

Gay rights advocates said they were optimistic that the time had come for marriage equality across the nation.

“We are at a major turning point in the arc of gay and lesbian rights,” said Suzanne B. Goldberg, a law professor at Columbia. “The cases are moving fast, and the country is as well.”

There has indeed been a rapid shift in public opinion, with a majority of Americans now saying they support same-sex marriage. With last month’s elections, nine states and the District of Columbia now allow such unions.

Still, the Supreme Court’s move came just eight years after Massachusetts became the first state to permit gay and lesbian couples to marry and just four years after voters in California rejected a ruling of their Supreme Court allowing same-sex marriages there.

The cautious move for the justices would have been to hear just one of the cases they were asked to consider, the one posing the relatively modest question of whether the federal government can discriminate against same-sex couples married in the places that allow such unions.

But the court went big on Friday, also taking the case from California filed by Theodore B. Olson and David Boies. Their case seeks to establish a constitutional right to same-sex marriage in the remaining states, almost all of which have laws or constitutional provisions prohibiting it.

“We are now literally within months,” Mr. Boies said Friday, “of getting a final resolution of this case that began three and a half years ago.”

The speed with which the court is moving has some gay rights advocates bracing for a split decision. The court could strike down the federal law, the Defense of Marriage Act, saying that the meaning of marriage is a matter for the states to decide. At the same time, it could reject the idea that the Constitution requires states to allow same-sex marriage, saying that the meaning of marriage is a matter for the states to decide.

That may be why supporters of traditional marriage sounded pretty cheerful on Friday.

“I’m ecstatic,” said Brian S. Brown, the president of the National Organization for Marriage. “Taking both cases at the same time exposes the hypocrisy on the other side.”

It is entirely possible, then, that the votes to grant review in the California case came from the court’s more conservative justices. They may have calculated that they had a shot at capturing the decisive vote of the member of the court at its ideological center, Justice Anthony M. Kennedy, at least in the California case.

But while the court is moving fast, it has left itself plenty of offramps. Officials in California refused to defend Proposition 8, the voter initiative that banned same-sex marriage in the state, or to appeal the lower-court decisions invalidating it. They left those tasks to proponents of the initiative…”

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by | December 10, 2012 · 7:07 pm

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