Gay-Marriage Issue Awaits Court Pick
Same-Sex Unions Supplant Abortion As Social Priority for Conservatives

By Shailagh Murray
Washington Post Staff Writer
Sunday, May 17, 2009

As President Obama prepares to name his first Supreme Court justice, conservatives in Washington are making clear that his nominee will face plenty of questions during the confirmation process on the legal underpinnings of same-sex marriage.

In addition to shedding more light on the nation's most contentious unfolding social drama and legal frontier, Senate Republicans say the debate could provide a road map to an Obama nominee's judicial philosophy.

"It may reflect the degree to which they think that they're not bound by the classical meaning of the Constitution, and that they may want to let a personal agenda go beyond what the law said," said Sen. Jeff Sessions (Ala.), the senior Republican on the Senate Judiciary Committee.

Questions on social issues in confirmation hearings have tended for the past 30 years to focus squarely on abortion, with partisans from both sides poring over a nominee's writings and rulings and presidents typically denying that any "litmus test" was employed in the selection.

Same-sex marriage carries the same freighted potential to dominate a hearing, conservatives say.

"It is now the flash point where politics and law meet. That flash point used to be abortion. I don't think anybody thinks that's going to be the flash point in this nomination," said William A. Jacobson, a Cornell University law professor and conservative blogger.

Sen. Orrin G. Hatch (Utah), another GOP member of the Judiciary Committee, said conservatives are particularly eager to avoid a Supreme Court ruling akin to the 1973 Roe v. Wade decision, which legalized abortion nationwide and has divided the country ever since. "I don't think members of the court, or any of us, ever want to see a decision like that again," Hatch said. Obama assured the senator in a recent meeting that he will not pick a "radical" to replace Souter, but Hatch added: "Presidents always say that. That's why we have the hearing process."

Same-sex marriage gained national resonance in the wake of last month's Iowa Supreme Court ruling that legalized the practice in that state. And in the two weeks since Justice David H. Souter announced his retirement, Maine also legalized same-sex marriage, becoming the fifth state to do so; the New Hampshire legislature sent a marriage-equality bill to the governor; the New York State Assembly approved gay-marriage legislation; and the District of Columbia voted to recognize same-sex marriages performed elsewhere.

Those actions, in so short a time, have outstripped the ability of Democrats in Washington to stake out their public position on the issue.

Obama has said that he personally opposes same-sex marriage, based on his Christian faith, but the White House said after the Iowa ruling that the president "believes that committed gay and lesbian couples should receive equal rights under the law."

Most Republicans and Democrats -- Obama included -- agree that individual states should determine their own marriage laws. But Congress complicated that process by approving the Defense of Marriage Act.

Rushed through by Republicans and signed by President Clinton on the eve of the 1996 election, the law allows states to ignore marriages performed in other states and denies federal recognition of legal gay marriages.

Under that law, same-sex couples are barred from receiving a long list of federal benefits -- more than 1,100. Justice Samuel A. Alito Jr., the most recent addition to the Supreme Court, acknowledged during his January 2006 Senate hearing that "several constitutional doctrines seem to be implicated" in the legislation, including the "full faith and credit" clause that compels states to honor judgments by other state courts. Legal scholars differ on the clause's application to gay marriage, Alito noted, and "that's an issue that may well come up within the federal courts" and is "almost certain to do so."

For conservative activists, the Defense of Marriage Act is the levee holding back the flood. The 2003 Supreme Court decision that threw out a Texas sodomy law sparked scores of civil challenges to state and federal gay-marriage restrictions based on discrimination and other claims. Conservative legal organizations have mobilized in opposition to these lawsuits and to increasing activity on the issue in state legislatures. One priority is to establish the right not to recognize same-sex marriage on religious grounds. In New Hampshire, Gov. John Lynch (D) is seeking protections for churches and their employees before he signs his state's pending same-sex marriage bill into law.

"This is kind of like the abortion debate 30 years ago. Some states changed their laws; some didn't," said Jordan Lorence, senior counsel for the conservative Alliance Defense Fund, who counseled New Hampshire Republicans on the religious exclusion, and whose group is active in other state and federal cases.

"Does the Supreme Court come in with a Roe v. Wade trump card?" Lorence asked. "How this is all going to play out over time, I think the new Supreme Court nominee is going to be a factor . . . which makes it a legitimate area of questioning."

Conservative groups are scrutinizing potential nominees for any hint of where they stand on the Defense of Marriage Act and other issues related to same-sex marriage. Gary Marx, executive director of the Judicial Confirmation Network, one of the leading groups revving up for the summer proceedings, said of the gravity of the marriage issue, "A lot of it does depend on who the nominee is."

One target is Solicitor General Elena Kagan, who is believed to be on Obama's shortlist. While dean of Harvard Law School, Kagan called the U.S. military's "don't ask, don't tell" policy on gay service members "both unwise and unjust" and sought to ban military recruiters from the Harvard campus. Her actions prompted numerous questions during Kagan's Judiciary Committee confirmation hearing about gay and lesbian legal rights.

Noting that as solicitor general Kagan would be charged with defending the 1996 marriage law, Sen. John Cornyn (R-Tex.) asked in a written question to Kagan whether she believes in a constitutional right to same-sex marriage. "There is no federal constitutional right to same-sex marriage," Kagan responded.

When Cornyn sought Kagan's opinion of the Massachusetts high court's ruling in 2003 in favor of same-sex marriage, she said she could not recall expressing one. "I suspect I participated in informal conversation about the decision when it came out, but I cannot remember anything that I said," Kagan wrote.

For Republicans, there are political risks in pushing the matter too far. A Washington Post-ABC News poll in April found 49 percent of respondents in favor of allowing gay marriage and 46 percent opposed to the idea. Three years ago, a broad majority -- 58 percent to 36 percent -- said such unions should be illegal.

Former congressman Bob Barr (R-Ga.), the lead author of the Defense of Marriage Act, recently renounced the law as a misguided muddle, and Sen. Tom Harkin of Iowa, one of the many Democrats who voted for the legislation, reversed his stance after the Iowa Supreme Court's ruling.

But while the gay rights agenda before Congress this year includes hate-crimes legislation and possibly a repeal of the military's "don't ask, don't tell" policy, Democrats sense that the climate is not right for repealing the federal marriage law.

"Where we have prospects of success, we always want to expand to a place of more opportunity and more freedom for all Americans," said House Speaker Nancy Pelosi (D-Calif.). But she added: "Right now, on our agenda, we're talking about turning the economy around."

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