Gay marriage is likely to move forward with significant new legal wins in the
United States as a result of two major cases being heard by the US Supreme Court
Still, same-sex marriage advocates will probably view the
likely legal wins as only partial successes.
Gay marriage opponents are
likely to be very disappointed with the results, but have not yet been
Tuesday’s case, which considered the
constitutionality of California’s Proposition 8 ban on gay marriage, was
actually the one which could potentially have led to recognizing a the right of
same-sex couples to marry in all 50 states.
But many are predicting that
the court will ultimately have buyer’s remorse about taking the case, and decide
to dismiss it on procedural grounds.
While this will let gay marriage
stand in California since the two levels of lower federal courts already struck
down the gay marriage ban in California as unconstitutional, it would not impact
the rest of the country.
Wednesday’s case, in contrast, has national
implications and involves the Defense of Marriage Act, but is limited to the
question of restricting certain benefits to heterosexual couples, and excluding
gay couples from receiving them.
The two cases come before the court as
some polls have shown support among Americans for gay marriage at record highs,
with already around 133,000 couples nationwide.
Although so far only nine
states recognize it, and the vast majority still ban it, the trend in recent
years has been almost one-sided in favor of gay marriage.
Rulings in both
cases are expected by the end of June.
US President Barack Obama led the
charge, ordering the US Attorney’s Office not to defend the lawsuit filed to
strike the law, even though normally one of the main jobs of government lawyers
is to defend federal laws in judicial proceedings.
That has left only a
less official group of Republican backers of the law to defend it. This has
raised the possibility that the court may say that Edith Windsor should win her
case as no official or aggrieved party, like the government, with proper
standing, is opposing her case.
But even if gay marriage advocates win in
Wednesday’s case, chances are that the broader national issue of same-sex
marriage will still go unresolved.
Many commentators say the court is
likely to rule on the procedural standing issue, and while this would give
Windsor a win, it would not be necessary to strike the law as a whole from the
Even if the court held the law itself unconstitutional, while this
would be a much bigger victory for gay marriage advocates, it would only mean
laws to exclude gay couples from receiving certain benefits would be
It would not recognize a constitutional right to gay
Most of the major recent court decisions on gay rights, such as
in 2003, have strengthened gay rights and beaten back laws limiting those
But the key “swing” justice from those cases, Anthony Kennedy
(eight of nine justices often split evenly on partisan lines on social issues),
seemed uncertain at Tuesday’s hearing about taking the final step of declaring a
constitutional right to marriage for same-sex couples.
According to media
reports, he noted that such a final move would be going against 2,000 years of
history or more.
The court may still strongly endorse or repudiate gay
marriage more broadly.
But most likely, a majority conservative court is
likely, to its chagrin, to move the cause of gay marriage incrementally forward
in ruling on Wednesday’s case by limiting or striking down the application of
the key “anti gay-marriage” federal law on the books.
At the same time,
the root conservative world-view of the court and the availability of a
procedural “out,” is likely to bring it to delay ruling on the core issue of
whether gay marriage is constitutional – at least for now.