March 24, 2013

Supreme Court has many options on gay marriage

Justices could apply caution when they hear historic arguments this week.

By ROBERT BARNES The Washington Post

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Sandy Stier, Kris Perry
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Sandy Stier, left, and Kris Perry, one of the California couples at the center of the Supreme Court’s consideration of gay marriage, will attend Tuesday’s court arguments.

The Associated Press

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While in 2012 North Carolina added a prohibition against same-sex marriage, voters in three states decided to allow it -- the first instances in which gay nuptials were approved in a popular vote. Nine states, including Maine, plus the District of Columbia, now allow same-sex marriage.

A recent Washington Post-ABC News poll showed 58 percent of Americans favoring legalization of same-sex marriage, including more than 80 percent of adults younger than 30.

A broad finding that the constitutional right to marriage must be extended to same-sex couples -- which is what the California couples request -- would force a national solution on a nation not ready for it, opponents say.

The arguments could point to a go-slow approach -- and the court has left itself plenty of options.

The broad constitutional question about the right to marry is raised only in the California case. But the court could decide whether California voters have the right to amend the state constitution without deciding the federal question.

Or it could find that since California officials have declined to defend Prop 8, the case is not properly before the Supreme Court. That would leave in effect a lower-court decision overturning the same-sex marriage ban but limit the decision to California.

There are similar technical questions in the Defense of Marriage Act case, since the Obama administration believes the 1996 law is unconstitutional and has declined to defend it.

Two justices will get the most attention in this week's oral arguments. Kennedy is the court's most outspoken advocate of states' rights. But he also provided the critical vote and employed soaring rhetoric in writing the opinions striking down a Colorado initiative that would have denied discrimination protection to gays and objecting to state sodomy laws that targeted homosexuals.

The other is Chief Justice John Roberts. His conservatism would seem to weigh against same-sex marriage, but as chief justice he also worries about the long-term influence of the court on a subject in which the public mood is clearly in flux.

"He particularly may look for a way to avoid ruling against gay marriage in these cases," Friedman said, "even if he is not prepared to rule for it."


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