The past few weeks -- heck, just the past few days -- have been huge for gay marriage.
We won't know until late June or maybe even early July how the Supreme Court will decide on California's Proposition 8 or the federal Defense of Marriage Act. And, as we learned with President Obama's health care law, making predictions based on oral arguments is never a good idea.
What we do know: the Supreme Court questioned the constitutionality of DOMA and appears ready to at the very least restore gay marriage in California. Meanwhile, gay marriage's support in the Senate has increased dramatically.
Let's review the week that was.
In oral arguments Monday on the constitutionality of California's ban on same-sex marriages, the Supreme Court seemed wary of finding a constitutional right for gay couples to wed. As WaPo's Supreme Court reporter Robert Barnes explained:
Justice Anthony M. Kennedy, considered to be the pivotal vote on the issue, said the court was in “uncharted waters.” He questioned whether it should have even accepted the case, in which lower courts struck down California’s voter-approved Proposition 8, which restricted marriage to heterosexual couples.
Finding a constitutional right to marry would overturn bans on same-sex marriage across the country in one fell swoop. Based on the oral arguments in Hollingsworth v. Perry, that seems unlikely. The Court could also find that states can't allow civil unions but not marriage to gay couples, which would affect nine states. (That position "drew almost no interest from the justices," Barnes writes.) The Court could sustain the Ninth Circuit decision striking down Prop 8 but limit the decision to California. (The handicapping of the oral arguments seems to suggest this is the most likely outcome. But remember our warning about the handicapping of the Court.) Or the Court could find that the petitioners don't have standing, which would in effect affirm the Ninth Circuit decision. They could also uphold Proposition 8, although analysts have deemed that improbable.
Meanwhile, the House GOP leadership isn't talking about the law they're defending in the Court -- much to the ire of social conservatives and amusement of gay Republicans. House Democrats say that 10 million people have seen a pro-marriage equality image the Democratic Congressional Campaign Committee posted on Facebook.
The Defense of Marriage Act
The intentions of the Court seemed a bit clearer on the 1996 Defense of Marriage Act in United States v. Windsor:
A majority of the Supreme Court on Wednesday questioned the constitutionality of the 1996 Defense of Marriage Act and whether it created unequal classes of married couples by denying federal benefits to legally wed same-sex couples.
But there was skepticism from conservative justices over whether either party in the case had standing to bring it to the Supreme Court at all. Republican leaders in the House defended DOMA in court; a SCOTUS-appointed attorney argued that they don't have the standing to do so. Moreover, she argued that the Obama Administration cannot be a party in the dispute because it agrees with the plaintiff. (The Justice Department announced last year it believed DOMA to be unconstitutional but continued to enforce it in advance of this case.)
A finding of no standing would mean a lower court ruling in plaintiff Edith Windsor's favor would be upheld but would not impact DOMA outside New York. The law has already "been declared unconstitutional as applied to same-sex couples married in the Northeastern states covered by the U.S. Courts of Appeals for the 1st and 2nd circuits," Barnes explains. A ruling that the law violates the 14th Amendment would overturn DOMA everywhere.
As the Supreme Court wrestled with the legality of gay marriage, Democratic senators were falling all over themselves to embrace it on moral grounds.
In the past week alone, Sens. Mark Begich (Alaska), Tim Kaine (Va.), Kay Hagan (N.C.), Claire McCaskill (Mo.), Jon Tester (Mont.) and Mark Warner (Va.) all came out in support of gay marriage. There are now only nine Democratic senators who do not support same-sex marriage: Tom Carper (Del.), Bob Casey (Pa.), Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), Tim Johnson (S.D.), Mary Landrieu (La.), Joe Manchin (W.V.), Bill Nelson (Fla.), and Mark Pryor (Ark.). Of those, Johnson no longer supports DOMA. Sen. Lisa Murkowski (R-Alaska) also says her views are "evolving."
Democrats appear to have decided that the Supreme Court cases are a tipping point and that if they don't back gay marriage now, history (and gay voters and donors) will treat them unkindly. And, of course, two weeks ago the first Republican senator, Ohio's Rob Portman, came out in support of gay marriage. This past Sunday, Karl Rove said the GOP could have a candidate in 2016 with the same position.
A Washington Post-ABC News poll came out this week showing support for gay marriage at an all-time high.