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Gay marriage at the Supreme Court: What are the pivot points?

What precedents and arguments may shape the court as it hears two landmark cases on whether same-sex couples have a constitutional right to marry.

By Staff writer / March 24, 2013

  • Supreme test for marriage

Upper left: Paul Melchert (l.) is interrupted by his son as he and his partner James Zimerman support a bill to legalize gay marriage in Minnesota. Upper right: In early 2012, two men protest against a gay marriage bill then working its way through the Maryland legislature in Annapolis.

Jim Mone/Patrick Semansky/AP



It has been 10 years since the US Supreme Court last issued a landmark ruling expanding gay rights in America.

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It came in a 2003 case called Lawrence v. Texas. In striking down a Texas anti-sodomy law, the high court declared that intimate sexual conduct between consenting adults was off limits to government regulation.

The author of that decision, Justice Anthony Kennedy, was well aware that he'd just delivered an extraordinary victory to gay rights advocates. Nonetheless, he included an unusual disclaimer near the conclusion of his opinion.

Justice Kennedy said the court's decision that day would have no wider application in the looming showdown over same-sex marriage.

"Do not believe it," conservative Justice Antonin Scalia roared in dissent.

"Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned," he wrote.

Now, a decade later, the nation is about to find out who was right – Kennedy in his limiting disclaimer or Justice Scalia in his dire warning.

On March 26 and 27, the US Supreme Court is set to hear two potential landmark gay rights cases, both dealing with the issue of same-sex marriage.

This marks the first time in 40 years that the high court is being asked to fundamentally redefine what marriage is in the United States. In the process, the high court is injecting itself squarely into one of the most divisive social issues of the past quarter century.

The outcome could affect hundreds of millions of dollars in federal marriage benefits currently limited to heterosexual spouses.

As in 2003, gay rights advocates are again hoping to win the potentially decisive swing vote of Kennedy. They are also hoping that the substance of Scalia's impassioned constitutional analysis in his dissent back in 2003 holds true in 2013.

"Lawrence was a very important turning point. It removed a huge roadblock on the path to gay marriage," says Dale Carpenter, a University of Minnesota Law School professor and author of "Flagrant Conduct: The Story of Lawrence v. Texas."

The decision lifted a legal stigma surrounding homosexuality and – despite Kennedy's disclaimer – it established a constitutional foundation that has influenced every subsequent court decision involving same-sex marriage.

Specifically at issue before the high court this month are two meas-ures that seek to preserve the traditional definition of marriage.

The first is a 2008 ballot initiative in California known as Proposition 8, which defines marriage in the state constitution as a legal union of one man and one woman. The second case is a challenge to the 1996 federal Defense of Marriage Act (DOMA), which for purposes of federal benefits also defines marriage as a union of one man and one woman.

Lawyers challenging the measures argue that Prop. 8 and DOMA violate the rights of same-sex couples by treating them like second-class citizens. "With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry. Your loving relationship is not equal to or respected enough to qualify to be called a marriage," writes Washington lawyer Theodore Olson in his brief seeking to overturn Prop. 8.

On the other side, lawyers counter that it is proponents of same-sex marriage who are seeking to change an institution that has existed throughout history as the symbolic joining of male and female. Preservation of this tradition is not discrimination, they say.


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