High court takes up gay marriage

 

The Supreme Court announced on Friday that it will take up the issue of gay marriage, adding to its docket a blockbuster case on an issue that has divided the country for years.

The decision, expected to come by June, could include declaring a nationwide constitutional right to same-sex marriage.

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The court is hearing an appeal from a ruling of the 6th Circuit Court of Appeals, which in November upheld bans on gay marriage in Ohio, Michigan, Kentucky and Tennessee.

That broke a streak of rulings striking down bans and helped force the Supreme Court to settle the split in lower courts.

In October, the court ducked the issue by declining to hear any of seven cases on the issue before it. That decision was interpreted as a signal that the majority of the justices are content to allow lower courts to continue to strike down bans without them being forced to issue a contentious nationwide ruling. 

There was a string of federal court rulings striking down gay marriage bans that began after the Supreme Court struck down part of the Defense of Marriage Act (DOMA) in 2013. 

The Supreme Court did not rule at that time on whether there is a constitutional right to gay marriage, but conservatives warned that the logic of the decision pushed in that direction.

The court has grouped the petitions from the couples in Ohio, Tennessee, Michigan and Kentucky together and set a total of one hour and 90 minutes for the hearings. The court will try to answer whether states are required to license a marriage between two people of the same sex and whether states have to recognize same sex-marriage licenses from other states under the 14th Amendment.

Attorney General Eric HolderEric H. HolderEric Holder to headline fundraiser for Clinton The Hill's 12:30 Report The Hill's 12:30 Report MORE said the Department of Justice will file a brief urging the Supreme Court to rule in favor of gay marriage.

"It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans — no matter who they are, where they come from, or whom they love," Holder said in a statement.  

Opponents of gay marriage, however, were quick to predict a ruling against same-sex marriage.

"We are confident that the Supreme Court has chosen the 6th Circuit case in order to affirm the finding of the Appeals court," Brian Brown, president of the National Organization for Marriage, which opposes gay marriage, said in a statement.  "We will be watching this case closely and anticipate an eventual victory for the democratic process, religious liberty, and the cherished institution of marriage which forms the very bedrock of our society."

The 2013 U.S. v. Windsor decision, striking down part of DOMA and requiring the federal government to recognize same-sex marriages, was a 5-4 decision along the court's usual ideological split.

The majority opinion, written by Justice Anthony Kennedy, often a swing vote, purposefully did not rule on the right to gay marriage.

However, the ruling on federal recognition of gay marriage was interpreted by some as a precursor to a broader ruling.

"The Constitution’s guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment of that group," Kennedy wrote, quoting a previous opinion.

Justice Antonin Scalia, a conservative, predicted in his dissent that this logic would lead to a broader ruling.

"The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare ... desire to harm’” couples in same-sex marriages," Scalia wrote. "How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status."

The case is certain to be among the most closely watched at the high court this term. The justices are also slated to revisit ObamaCare this spring. That case, King v. Burwell, could cut off federal subsidies to federally run insurance marketplaces under the law.

Speculation that the court would ultimately agree to weigh in on gay marriage was fueled by remarks made by Justice Ruth Bader Ginsburg.

During a lecture at the University of Minnesota this fall, Ginsburg said the Supreme Court’s decision to hear the gay marriage petitions was tied to the actions of the 6th Circuit. 

There will be urgency, she said at the time, if that appeals court allows same-sex marriage bans to stand, according to media reports.

During that speech, Ginsburg called the shift in public perception of same-sex marriage “remarkable” and said it’s due to more lesbian and gay couples being open about their relationships. 

Some court watchers believe that the court's decision to weigh in on the issue bodes well for supporters of gay marriage.

"It seems, while it is never possible to predict what the court will do, the nation's courts and legislatures have overwhelmingly supported marriage equality and it is reasonable to expect the Supreme Court will do the same," said Suzanne Goldberg, Director of Columbia University's Center for Gender and Sexuality Law.
 
The Human Rights Campaign had been pushing for the Supreme Court to take up the issue, and it praised the action. 

"The U.S. Constitution does not tolerate second-class citizenship, a fact that has toppled discriminatory marriage bans from Utah to Arkansas," Human Rights Campaign President Chad Grifin said in a statement. "We've reached the moment of truth — the facts are clear, the arguments have been heard by dozens of courts, and now the nine justices of the Supreme Court have an urgent opportunity to guarantee fairness for countless families, once and for all.”

But with conservative justices, Tom Goldstein, a partner at law firm Goldstein & Russell, P.C. and publisher of SCOTUSblog, said there’s no guarantee the court will go all the way.
 
“It’s going to be a nail-biter,” he said. “The question is whether Justice Kennedy sees this as a constitutional right. If he does, maybe the chief justice will go along it.”
 
If not, Goldstein said the court is likely to compromise with a decision that will force states to recognize same-sex marriages licensed in other states.
 
"That seems almost certain to be adopted by the majority of the court," he said. "It would be a second-class citizenship for these marriages."

Updated at 5:28 p.m.

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