The Supreme Court will meet behind closed doors Friday to decide whether it will hear major gay marriage cases.
The court might hear a challenge to the defence of Marriage Act — which defines marriage as between a man and a woman — and a case involving California’s Proposition 8, which banned gay marriage.
The Proposition 8 case could be a bigger game-changer than DOMA, but gay rights advocates are divided about whether the court should take up the issue now or later.
In Prop 8, the Ninth Circuit rejected the state’s ban on gay marriage as unconstitutional.
If the Supreme Court refuses to hear Prop 8, then gay marriage will stand in California. But if it takes the case, then the court could potentially make gay marriage legal everywhere.
Ted Olson, who represented Prop 8 opponents, acknowledged in an LA Times interview that he’s torn about whether the high court should take on this front of the gay marriage battle.
“We won the case, and if they don’t take it, our clients have won,” said Olson, a conservative in favour of gay marriage. “But if they take the case, it could lead to a broader victory.”
Other legal experts who support gay marriage believe the high court could ruin the progress gays have already made if it acts now.
In a Slate article, William Eskridge and Darren Spedale argued that it would be easier for gay rights advocates to sway conservative justices if they waited for more states to legalise same-sex marriage.
Right now, the Supreme Court would be very hesitant to force every state to allow gay marriage, Northwestern Law professor Andrew Koppelman told the LA Times.
“So, this is an excellent time for them to shut up and do nothing,’ Koppelman said.