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.
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"Providing special recognition to one class of individuals does not demean others who are not similarly situated," writes Washington lawyer Charles Cooper in his brief urging the court to uphold Prop. 8. "It is simply not stigmatizing for the law to treat different things differently, or to call different things by different names."Skip to next paragraph
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The most basic question at the heart of the debate over same-sex marriage is whether the US Constitution protects a fundamental right to marry regardless of sexual orientation.
Gay marriage proponents say it clearly does. Supporters of traditional marriage counter that the Supreme Court has never recognized such a right. They cite a 40-year-old precedent, Baker v. Nelson, that upheld a Minnesota law restricting marriage to one man and one woman.
But that's not the precise issue before the court. The justices have agreed to examine whether same-sex couples are entitled – under the Constitution's equal protection provisions – to be treated equally when it comes to marriage and the benefits of marriage.
That's where Scalia's prediction in the 2003 case may prove prophetic, and perhaps decisive. The Texas statute invalidated in 2003 had been justified by state lawmakers as a reflection of society's shared view that homosexual conduct was immoral. Kennedy's opinion rejected the use of sexual morality as a justification for criminalizing a consenting adult's private intimate conduct.
But the court didn't stop there. Kennedy went on to identify a constitutionally protected zone of personal liberty beyond the reach of the government involving the most intimate and private aspects of human relationships.
"Our laws and traditions afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," he wrote.
Kennedy added: "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."
Despite Kennedy's disclaimer that the Texas decision was not about same-sex marriage, the opinion had an immediate and profound effect on the debate over the issue. Within five months, the Massachusetts Supreme Judicial Court declared that same-sex couples in the state enjoyed a fundamental right to marry under the Massachusetts Constitution. It thus became the first state in the US to establish a state-based constitutional right to same-sex marriage.
The first and most frequently cited case in the Massachusetts decision: Lawrence v. Texas. In the years since, eight other states and the District of Columbia have recognized same-sex marriages. At the same time 30 states passed constitutional amendments defining marriage as a union between one man and one woman. Eight other states adopted statutes enforcing the same traditional definition.
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To prevail at the high court, supporters of California's Prop. 8 and DOMA must be able to offer a persuasive justification for treating gay and lesbian couples differently from heterosexual couples.
Because of the Lawrence decision, they can't argue that society views homosexual conduct as immoral. That argument is off the table.
Instead, proponents of the traditional view of marriage argue that the government is entitled to grant preferential treatment to couples of the opposite sex to encourage what it considers the ideal arrangement for raising children: two biological parents in a stable home, providing male and female role models for their own children.
Traditional marriage sup-porters contend that the institution would be irrevocably eroded to the detriment of biological fathers and mothers – and children – if same-sex marriages are permitted. Such views are influenced by religious beliefs, biblical teachings, and people's own sense of morality.