WASHINGTON — The Supreme Court is set to hear historic arguments in cases that could make same-sex marriage the law of the land.
The
justices are meeting Tuesday to offer the first public indication of
where they stand in the dispute over whether states can continue
defining marriage as the union of a man and a woman, or whether the
Constitution gives gay and lesbian couples the right to marry.
The
court is hearing extended arguments, scheduled to last 2 ½ hours, which
also will explore whether states that do not permit same-sex marriage
must nonetheless recognize such unions from elsewhere.
Same-sex couples can marry in 36 states and the District of Columbia.
The
cases before the court come from Kentucky, Michigan, Ohio and
Tennessee, four of the 14 remaining states that allow only heterosexual
marriage. Those four states had their marriage bans upheld by the
federal appeals court in Cincinnati in November. That is the only
federal appeals court that has ruled in favor of the states since the
Supreme Court in 2013 struck down part of the federal anti-gay marriage
law.
Justice
Anthony Kennedy has written the court's three prior gay rights
decisions, including the case from two years ago. All eyes will be on
Kennedy for any signals that he is prepared to take the final step in
granting marriage rights to same-sex couples.
Such an outcome was inconceivable just a few years ago.
The
first state to allow gay and lesbian couples to marry was
Massachusetts, in 2004. Even as recently as October, barely a third of
the states permitted it. Now, same-sex couples can marry in 36 states
and the District of Columbia, a dramatic change in the law that has been
accompanied by an equally fast shift in public opinion.
The main thrust of the states' case is to reframe the debate.
"This
case is not about the best marriage definition. It is about the
fundamental question regarding how our democracy resolves such debates
about social policy: Who decides, the people of each state or the
federal judiciary?" John Bursch, representing Michigan, wrote in his
main brief to the court.
Other
arguments by the states and more than five-dozen briefs by their
defenders warn the justices of harms that could result "if you remove
the man-woman definition and replace it with the genderless
any-two-persons definition," said Gene Schaerr, a Washington lawyer.
The
push for same-sex marriage comes down to fairness, said Mary Bonauto,
who will argue on behalf of the plaintiffs. The people who have brought
their cases to the Supreme Court are "real people who are deeply
committed to each other. Yet they are foreclosed from making that
commitment simply because of who they are," she told reporters last
week.
Arguments
made by Bonauto, other lawyers for same-sex couples and more than
six-dozen supporting briefs have strong echoes of the 1967 Loving v.
Virginia case, in which the Supreme Court struck down state bans on
interracial marriage. In that case, the justices were unanimous that
those bans violated the constitutional rights of interracial couples.
No
one expects unanimity this time. But many believe the justices will
take the final step toward what gay rights supporters call marriage
equality, in part because they allowed orders in favor of same-sex
couples to take effect even as the issue made its way through the
federal court system.
That
was action through inaction, as other judges played a major role over
the years. Only 11 states have granted marriage rights to same-sex
couples through the ballot or the legislature. Court rulings are
responsible for all the others.
- A decision is expected in late June.
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