The news is just breaking that the Supreme Court has decided to take up two gay marriage cases: the legal challenge to California’s Proposition 8 and a review of the Defense of Marriage Act. They will render a decision on this by June 2013, and the result could be every bit as momentous as Roe v. Wade was in 1973. That means that in less than a year laws banning gay marriage could be overturned in every state of the union. Or maybe not. It’s all in the balance now. Here’s the report from the Associated Press:
The Supreme Court will take up California’s ban on same-sex marriage, a case that could give the justices the chance to rule on whether gay Americans have the same constitutional right to marry as heterosexuals.
The justices said Monday they will review a federal appeals court ruling that struck down the state’s gay marriage ban, though on narrow grounds. The San Francisco-based appeals court said the state could not take away the same-sex marriage right that had been granted by California’s Supreme Court.
The court also will decide whether Congress can deprive legally married gay couples of federal benefits otherwise available to married people. A provision of the federal Defense of Marriage Act limits a range of health and pension benefits, as well as favorable tax treatment, to heterosexual couples.
Overturning state bans on gay marriage is by no means a slam dunk, but it is very much a possibility now that SCOTUS has decided to hear the case. It will depend on how certain justices decide to rule. Scalia, Thomas, and Alito are almost surely to vote against gay marriage. It’s possible that Chief Justice Roberts may join them, though that is not certain at this point.
If Roberts does hang tough with the conservatives, then it will all come down to Kennedy. Keep in mind that Justice Kennedy was the one who authored the Court’s two strongest gay rights rulings, including the 2003 decision that struck down Texas’ anti-sodomy laws. It seems then that there is a very real possibility that the majority could go in favor of gay marriage.
It’s also possible that SCOTUS might rule narrowly in a way that doesn’t have broad implications for the rest of the country. In any case, gay marriage advocates are poised for a victory in my view. Whether they move the ball down the field one yard or one-hundred yards remains to be seen. We’ll know by June.