Supreme Court takes up gay marriage: what the justices have to decide

The US Supreme Court has set the stage for the most important judicial examination of gay rights in America – so far.

By agreeing on Friday to decide two different appeals involving same-sex marriage, the high court has set itself up as ultimate arbiter in an emotional and divisive battle at the heart of the nation’s raging culture war.

But the central question of these appeals is not whether the US Constitution protects a right to same-sex marriage.

Instead, the issue before the court is whether measures like Proposition 8 in California and the federal 1996 Defense of Marriage Act (DOMA) amount to invidious discrimination against homosexuals in violation of the Equal Protection Clause of the 14th Amendment.

However, should a majority of justices agree, the court’s decision might well provide a gay rights landmark equivalent to Brown v. Board of Education.

Supporters of the anti-gay marriage measures say they are merely upholding the traditional definition of marriage, as a union between one man and one woman.

Nonetheless, since 2004, more than 100,000 same-sex marriages have been performed in the US.

At its most basic, the issue the justices must determine is how equal protection is to be enforced in cases involving sexual orientation and marriage.

They have agreed to answer that question in the context of California’s Prop. 8 ban on same-sex marriage and the continued enforcement of DOMA, which bars gay and lesbian married couples from receiving the same federal benefits as heterosexual married couples.

The cases, Hollingsworth v. Perry (12-144) and US v. Windsor (12-307), likely will be set for oral argument in March or April, with decisions announced by late June.

It is not clear how the high court will resolve these disputes. Justice Anthony Kennedy authored the high court’s two most recent gay rights decisions – Romer v. Evans in 1996, and Lawrence v. Texas in 2003.

Both decisions significantly expanded gay rights, but there is no indication yet where Justice Kennedy, a potential decisive swing vote, may come down in the same-sex marriage cases.

Specifically, the court must decide what level of judicial scrutiny to apply to the challenged measures.

Will a majority of justices decide that gay and lesbian couples are entitled to a higher protected status as members of a distinct and powerless group long subjected to discrimination?

Or will the court conclude that same-sex couples are entitled to no special protection when challenging measures that seek to uphold a definition of marriage that has prevailed – largely unchallenged – for much of civilized history.

In addition, the court must decide whether the government has a justifiable reason to treat male-female married couples differently than married couples of the same sex.

Traditionally, marriage has been accepted as an institution vital to the propagation of the human race. The ideal environment for that project was seen as an intact family unit with both biological parents serving as role models for their children.

But fertility and parenting skills were never prerequisites for marriage. And experience shows that same-sex married couples are just as capable as opposite-sex couples of raising adopted children as their own in a stable and loving home.

The trump card for traditionalists in the past was the argument that homosexual conduct violated society’s shared concept of sexual morality.

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