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

The main question before the Supreme Court is not whether the Constitution protects gay marriage, but whether Prop. 8 and DOMA discriminate in violation of the 14th Amendment.

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In the same-sex marriage issue, today 37 states have passed constitutional amendments or statutes restricting marriage to one man and one woman.

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In contrast, nine states plus the District of Columbia recognize same-sex marriage. The recognition has come as a result of court rulings, state legislation, and by state-wide referenda.

There is evidence that that the tide of public opinion may be shifting.

Three states – Maryland, Maine, and Washington State – voted in the November election to authorize same-sex marriage. Voters in Minnesota rejected a same-sex marriage ban, while North Carolina voters approved a ban in May.

Prior to the November votes, ballot initiatives supporting same-sex marriage had been defeated 30 times in a row.

In addition, national public opinion polls now show a majority of Americans favor legalizing same-sex marriage, although significant opposition remains. And President Obama, who dodged the same-sex marriage issue during his first presidential campaign, endorsed gay marriage earlier this year, and last year his administration ended the Defense Department’s discriminatory “don’t ask, don’t tell” policy, which barred individuals who were openly gay or lesbian from serving in the US armed forces.

Defenders of the traditional concept of marriage say gay rights proponents are seeking to have courts dictate to the country how these issues should be resolved. They say the same-sex marriage issue should instead be left to voters and lawmakers to decide through channels of democratic government.

In the Prop. 8 case, the justices must decide whether a 2008 state-wide referendum in California violated the equal protection rights of gay and lesbian couples seeking to get married.

The referendum was a reaction to a 4-3 decision by the California Supreme Court that declared for the first time that the state’s constitution recognized a right of same-sex couples to marry.

An estimated 20,000 marriage licenses were issued to gay and lesbian couples in California in the five months following the decision. Meanwhile, supporters of the traditional definition of marriage went to work organizing a state-wide vote to amend the California constitution and restore the definition of marriage to a union between a man and a woman.

The referendum passed 52 percent to 48 percent, with more than seven million votes cast in favor of the amendment.

A group of same-sex couples challenged Prop. 8, arguing in federal court that the referendum violated their constitutional right to marry. A federal judge agreed, and declared Prop. 8 unconstitutional.

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