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Gay unions on top docket

December 8, 2012 12:10 am


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Supreme Court justices will weigh in on California's ban on same-sex unions like that of Aaron Carruthers (left) and Keith Haberstuck, who wed in San Francisco in 2004.


Associated Press


--The Supreme Court plunged into the contentious issue of gay marriage Friday when it agreed to take up California's ban on same-sex unions and a separate dispute about federal benefits for legally married gay couples.

The court's action gives the justices the chance to say by late June whether gay Americans have the same constitutional right to marry as heterosexuals. Several narrower paths also are open to the justices as they consider both California's voter-approved Proposition 8 and the provision of the federal Defense of Marriage Act that denies to legally married gay Americans the favorable federal tax treatment and federal health and pension benefits given to heterosexual couples.

The court is embarked on what could be its most significant term involving civil rights in decades. In the area of racial discrimination, the justices already have agreed to decide cases on affirmative action in admission to college and a key part of the Voting Rights Act. The gay marriage cases probably will be argued in March and decisions in all the court's cases are likely by June.

The order from the court extends a dizzying pace of change regarding gay marriage that includes rapid shifts in public opinion, President Barack Obama's endorsement in May and votes in Maine, Maryland and Washington in November to allow gay couples to marry. Same-sex couples in Washington began picking up licenses Thursday.

Yet even as gay marriage is legal, or soon will be, in nine states--Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont are the others--and the District of Columbia, it is banned by state constitutions of 31 others. Federal courts in California have struck down the state's constitutional ban on same-sex marriage, but that ruling and thus gay unions remain on hold during the appeal.

The high court's decision to hear the federal benefit question was a virtual certainty because several lower courts struck down the provision of the 1996 law and the justices almost always step in when lower courts invalidate a federal law.

There is nothing that compelled a similar response in the case over California's Proposition 8, the state constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry. Indeed, gay marriage supporters who prevailed in the lower courts urged the Supreme Court to stay out of the case and allow same-sex unions to resume in the nation's largest state.

Even some gay rights activists worried it was too soon in the evolution of views to ask the justices to declare same-sex couples have the right to marry. But Theodore Olson, the Washington lawyer who represents Californians who sued over Proposition 8, says he will argue a "fundamental constitutional right to marry for all citizens."

Opponents said they're heartened by the action.

"We believe it is a strong signal that the court will reverse the lower courts and uphold Proposition 8," said John Eastman, chairman of National Organization for Marriage and a law professor at Chapman University in Orange, Calif.

Advocates for same-sex unions said the court could decide in favor of gay marriage in California without issuing a sweeping national ruling to overturn every state prohibition.

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