The Supreme Court is poised to hear two blockbuster cases on gay rights this week, with historic implications for a cause that is advancing politically at lightning speed.
The cases to be heard on Tuesday and Wednesday involve the constitutionality of California’s Proposition 8, which defines marriage as between a man and a woman, and the federal defence of Marriage Act, which bars married same sex couples from receiving federal benefits.
By the end of June, nine justices will either advance the cause of gay rights, set it back, or punt on the larger questions, as support for gay equality in various forms rises in the polls.
All eyes are on Justice Anthony Kennedy, who has a pro-gay-rights streak, and to a lesser extent Chief Justice John Roberts, whose legacy will be shaped by the ruling.
“There have been two decisions in American history expanding rights for gays and lesbians. … Anthony Kennedy wrote the opinion for the Court in both,” Erwin Chemerinsky, a constitutional law professor at UC-Irvine School of Law, told TPM recently. “He knows where history is going and that he faces the choice between writing the next Plessy v. Ferguson and the next Brown v. Board of Education. He wants to be on the right side of history.”
Among court watchers, the prevailing expectation is for DOMA to be struck down, an outcome supported by various corners of the legal and political spectrum. The decision is about whether or not to equalise federal treatment of married heterosexual and same-sex couples.
Prop 8 is harder to predict — and its implications trickier. The favoured outcome among gay rights advocates is one where the Court recognises a constitutional right to marry and overturns all state bans on gay marriage. The justices may also overturn Prop 8 on the particulars and leave other bans intact. Or they may decide that states are free to prohibit gay marriage. The first option would all but remove the issue from the political arena; the latter two would likely incite a series of long and contentious battles in states.
The justices will hear the two cases amidst a national revolution for gay rights.
Support for legalizing same sex marriage has quickly become a litmus test in the Democratic Party after President Obama championed the cause last summer. And even some Republicans are slowly coming around: In recent weeks, Sen. Rob Portman (R-OH) has come out for gay marriage and the Republican National Committee has recognised the “generational differences” on (read: growing support for) gay rights.
This story was originally published by Talking Points Memo.
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