The issue of same-sex marriage may be heading to the U.S. Supreme Court a lot quicker than most would have thought as a result of two recent lower court rulings.
On Tuesday, the 9th Circuit Court of Appeals in San Francisco declined to overturn a ruling by a three-judge panel that tossed out Proposition 8, the 2008 referendum that wiped out marriage rights in California.
And last week, the federal court in Boston overturned the portion of the Defense of Marriage Act (DOMA) that forbade legally married same-sex couples from receiving federal benefits. The court did not rule on the other provision of DOMA, which says that states do not have to recognize same-sex marriages performed in other states.
My thought is that the High Court has no choice but to take up the DOMA case, and my feeling is that the MA couples who sued to overturn the law have a rock-solid case. The feds have no rational basis for denying benefits to couples legally married in the six states (plus DC) that allow same-sex marriage.
Now whether the Supremes will rule on the other provision of DOMA, or in the Prop. 8 case, is less clear. And if they do, it's by no means sure how it will go. There are four solid conservative votes on the High Court. Anthony Kennedy has been pro-gay on several key decisions and wrote the landmark opinion in the Texas sodomy law case. However, in that ruling, he also expressly noted that it should not be considered to apply to marriage.
There is also a thought that the court might decline to rule on the Prop. 8 case, as the decision in that case is narrowly written to apply only to California.
If the court does accept the Prop.8 case, in particular, expect all hell to break loose, as it would mean that it is seriously considering a definitive ruling on same-sex marriage rights.
I think I would be happy if the court just takes the DOMA case and rules only on the easy portion -- federal benefits -- in order to establish precedent before taking up the broader issue a few years down the road. It would also be nice to have a little more liberal court first.
However, the Prop. 8 case might force the court's hand. The irony, if we win on it, is that the right wingers are the ones pushing that case to the high court. Not us.
There so many historical cases such as "sundown" laws, or prohibitions of interracial marriage, or denial of land ownership to minorities, etc... all legally enacted laws, but nonetheless ultimately found to be in violation of the U.S. Constitution. We can only hope the Supreme Court finds that restrictive marriage laws are equally unjust.
So to me it is more about our rights than it is about the word "marriage". It is about being able to make decisions and people knowing I have the right to make them.