There are 9 states and the District of Columbia that have legalized gay marriage, and 38 states that have legislation that bans it.
The Supreme Court of the United States has finished hearing the first of two days of oral arguments concerning same-sex marriage. On Tuesday they heard the case of California’s Proposition 8, which bans same-sex marriage, and on Wednesday they will hear arguments on the federal Defense Of Marriage Act (DOMA) which states that marriage is defined as being between one man and one woman and has effectively blocked legally married same-sex couples from receiving federal benefits. According to USA Today, the discussion on Tuesday, “often focused on technical issues that could thwart both sides’ desires for a clear result.” Several of the 9 justices, led by Anthony Kennedy, even questioned if the case belonged before them.
After almost 90 minutes of debate and the justices questioning of the attorneys for both sides, several key aspects of the hearing have become clear,
• Chief Justice John Roberts was skeptical of gays’ and lesbians’ right to marry. “This institution’s been around since time immemorial,” he said.
• Kennedy, as usual, appeared torn and looking for an escape route. “I just wonder if the case was properly granted,” he said.
• The four liberal justices appeared aligned with those favoring same-sex marriage. Justice Elena Kagan led a round of questions about the importance of procreation, a key argument of gay marriage opponents. What about infertile couples, those over 55, and prisoners? They can’t procreate, either.
• Justice Antonin Scalia and the other conservatives appeared more likely to side with Proposition 8’s supporters — and particularly with the argument that the court should use caution before green-lighting gay marriages.
The court will reach a decision by late June, and whatever their ruling may be, it will “mark a milestone on an issue that has divided the nation for decades.” There are 9 states and the District of Columbia that have legalized gay marriage, and 38 states that have legislation that bans it.
The court could rule broadly against Proposition 8, but in so doing would “implicate other state prohibitions,” which would more than likely lead to nationwide lawsuits and repeal efforts. If the court chooses to go the other way and uphold California’s ban it could be a huge blow to the gay rights movement that would have far reaching effects. Another possibility, as USA Today explains is that the court could rule more narrowly,
[L]imiting its ruling to eight states that allow the benefits of marriage without the title; to California only, because it took away a right that previously existed; or by deciding that the case is not properly before the justices because the four gay and lesbian plaintiffs and the state of California are on the same side. California has refused to defend its ban in court.
However the court decides to rule, there is no question that the losing side will respond with more, and surely fiercer, legal, legislative and lobbying campaigns from coast to coast.
You can hear audio of the oral arguments, and see a transcript of the 90 minute debate here.