The U.S. Supreme Court will decide what it wants to do with a stack of cases filling its in-box on the subject of same-sex marriage as soon as Friday. Just don't expect a final up-or-down vote on the issue anytime soon.
The Supreme Court is in the process of deciding what cases it will rule on in the next year. Ten same-sex marriage cases are possibilities, including a challenge to California's ban on gay marriage and a number of disputes over the federal Defense of Marriage Act.
The issue has become politically and socially fraught, and the court doesn't appear to be taking this decision lightly. It has deferred its announcement in recent days, but it can’t put it off much longer, experts said.
“It’s hard to look the other way,” University of Chicago law professor Geoffrey Stone said.
The cases land in front of the Supreme Court as Americans seem to be growing slowly more accepting of same-sex marriage. A variety of public opinion polls taken over the last decade illustrate that shift.
During that time, the number of states where gay marriage is legal has grown to nine (in addition to the District of Columbia), the most recent burst coming on Election Day this year, when voters in Maine, Maryland and Washington endorsed it. Five more states allow civil unions, a legal step short of marriage. Three states -- including California -- permit domestic partnerships. The rest of the country bans gay marriage.
In May, President Barack Obama said his feelings on the issue had evolved to the point that he was comfortable with same-sex marriage.
Maryland and Washington began issuing marriage licenses on Thursday.
“That these issues exist at all is because public attitudes about homosexuality have changed dramatically,” said Stone, a constitutional scholar and author. “Attitudes have evolved about the meaning of equality over time, just as they did with separate but equal (the invalidated legal doctrine that justified racial segregation) and with women.”
The court has a range of choices, from sidestepping the issue entirely by choosing not to hear any of the cases to tackling the heart of the issue: whether same-sex marriage should be legal under the constitution.
But legal experts expect the court to land somewhere in the middle. The Supreme Court typically does not run ahead of changes in social norms, legal experts say. That is why it is expected to take up the issue in a way that avoids making too broad an impact.
The court could announce which gay marriage cases -- if any -- it will hear during the upcoming term on Friday.
There are two types of cases that the high court is considering. Most are related to the 1996 Defense of Marriage Act, a federal law that defined marriage as between a man and a woman. That legislation prohibits same-sex couples in states that have legalized gay marriage from an array of federal benefits, including tax deductions, Social Security survivor benefits and federal employee health insurance.
Across the country, challenges have arisen from people who have been denied assistance that they would have had access to if they were in a heterosexual union. They charge that the exclusion violates their constitutional rights of equal protection, and several lower courts have ruled in their favor.
Under President Obama, the Justice Department has stopped defending DOMA in court, and the Republican-led House of Representatives has taken up the fight.
The Supreme Court is widely expected to take up at least one of those cases, because it rarely passes on considering decisions that have overturned federal law.
California's Proposition 8 is another situation. That measure, banning same-sex marriages, was passed by voters in 2008 in response to a state Supreme Court ruling that legalized gay marriage. A federal judge struck down Proposition 8, saying it violated the constitution's Equal Protection Clause. The 9th U.S. Circuit Court of Appeals upheld that decision, but under narrower grounds, saying the state could not take from gay couples a right that they had already been granted.
Stone believes the high court will take up at least one case and rule in a way that strikes down DOMA and/or Proposition 8 without addressing the broader legality of same-sex marriage itself.
“This is an inflammatory issue, and a way of dipping one’s toe in the water,” Stone said.
He and many other Supreme Court observers see a split decision, with Justice Anthony Kennedy casting a swing fifth vote in favor of same-sex couples.
Under that scenario, the much larger issue -- whether it is discriminatory to bar gays and lesbians from getting married -- will be put off, most likely to a different Supreme Court.
Lisa Soronen, executive director of the State & Local Legal Center, which represents state and local governments in Washington, predicted that the Supreme Court would pass on Proposition 8, allowing the lower court’s ruling to stand. If that happens, gay marriage would become legal in California almost immediately.
But the DOMA battle is too important to ignore, she added.
If the court does not take up any DOMA cases, then the stack of challenges will continue to grow, and rulings from lower courts will create a “weird” situation where federal law applies in some places and not in others, Soronen said.
She sees those cases through the prism of state’s rights: historically, the federal government has butted out of family law matters.
“This isn’t a thumbs up or thumbs down on same sex marriage; it’s about the federal government limiting who can get married,” Soronen said.
That narrow sort of view will likely guide the Supreme Court, she said.