WASHINGTON – The Supreme Court plunged into the contentious issue of gay marriage Friday when it agreed to take up California’s ban on same-sex unions and a separate dispute about federal benefits for legally married gay couples.
The court’s action gives the justices the chance to say by late June whether gay Americans have the same constitutional right to marry as heterosexuals. Several narrower paths also are open to the justices as they consider both California’s voter-approved Proposition 8 and the provision of the federal Defense of Marriage Act that denies to legally married gay Americans the favorable federal tax treatment and a range of federal health and pension benefits given to heterosexual couples.
The gay marriage cases probably will be argued in March and decisions in all the court’s cases are likely by the end of June.
Gay marriage is legal, or soon will be, in nine states and the District of Columbia, but it is banned by the state constitutions of 31 others. Federal courts in California have struck down the state’s constitutional ban on same-sex marriage, but that ruling and thus gay unions remain on hold while the issue is being appealed.
The high court’s decision to hear the federal benefit question was a virtual certainty because several lower courts struck down the provision of the 1996 law and the justices almost always step in when lower courts invalidate a federal law.
There is nothing that compelled a similar response from the court in the case over California’s Proposition 8, the state constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry. Indeed, the gay marriage supporters who prevailed in the lower courts urged the Supreme Court to stay out of the case and allow same-sex unions to resume in the nation’s largest state.
Even some gay rights activists worried that it was too soon in the evolution of views toward same-sex marriage to ask the justices to intervene and declare that same-sex couples have the same right to marry as heterosexuals. But Theodore Olson, the Washington lawyer who represents Californians who sued over Proposition 8, said he will argue that there is a fundamental constitutional right to marry for all citizens.
Opponents of gay marriage said Friday they are heartened by the Supreme Court’s action.
We believe it is a strong signal that the court will reverse the lower courts and uphold Proposition 8, said John Eastman, chairman of the National Organization for Marriage and a law professor at Chapman University in Orange, Calif.
On the other side of the issue, advocates for same-sex unions said the court could easily decide in favor of gay marriage in California without issuing a sweeping national ruling to overturn every state prohibition on marriage.
In striking down Proposition 8, the 9th U.S. Circuit Court of Appeals crafted a narrow ruling that said because gay Californians already had been given the right to marry, the state could not later take it away. The ruling studiously avoided overarching pronouncements.