The Supreme Court will hear two cases on gay marriage Tuesday and Wednesday. Tuesday’s case concerns California’s Proposition 8, passed by voters there in 2008. On Wednesday, the justices will consider the Defense of Marriage Act, passed by Congress in 1996. Robert Barnes reports that the justices have “an unusually wide range of options” for deciding the cases:
With an overwhelming majority of state laws pointing one way and public opinion trending rapidly in the other, the Supreme Court may enter this week’s historic arguments over same-sex marriage with a preference for caution over boldness. (Read the rest of Barnes’s analysis here.)
More and more people are indicating their support for gay marriage. According to a recent Post-ABC poll, 58 percent of the country believes gay marriage should be legal (although polls may understate the strength of opposition to same-sex unions). Sen. Claire McCaskill (D-Mo.) announced her support for gay marriage on Sunday. Both former Secretary of State Hillary Clinton and Sen. Robert Portman (R-Ohio) have said recently they believe gay people should be able to marry.
Former president Bill Clinton writes that when he signed the Defense of Marriage Act, circumstances were very different than they are now:
As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, many supporters of the bill known as DOMA believed that its passage “would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.”...
As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution. (Read the rest of his column here.)
However the court rules, Chris Cillizza argues that these trends mean the debate over gay marriage is effectively finished:
The trajectory of the data suggests that ambitious Republicans who want to win statewide in swing states or get elected president in 2016 and beyond simply won’t proactively talk about the issue. Outside of Republican primary fights, gay marriage will disappear from the national political dialogue as an issue.
George Will offers a conservative argument against the Defense of Marriage Act on the grounds that it undermines the authority of state governments:
The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage.
The court might strike down the act without invalidating Proposition 8, which wouldn’t help the plaintiffs in the California case. Two of them, Jeff Zarrillo and Paul Katami, live “in a small but handsome house just past the second speed bump on a quiet, suburban street”:
What the court is interested in, among other things, is whether the constitutional guarantee of equal protection contained in the 14th Amendment, adopted in 1868, requires extending the right of marriage to those who want to wed someone of the same sex. What Zarrillo and Katami are interested in is getting married. (Read the full profile here.)
The justices have several options in considering Proposition 8. They could conclude that the Constitution requires that same-sex couples be allowed to marry, or that the Constitution is silent on the issue, among other possible rulings:
They could also decide that the issue is not properly before the court. Because California’s political leaders disagree with Prop 8 and have chosen not to defend it, the court will have to decide whether proponents of the measure may be the ones to do so.
If not, the state probably will be free to again issue marriage licenses to same-sex couples. (Read a full preview of Tuesday’s case here.)
For more coverage from around the Web, see this morning’s Wonkbook.