The Supreme Court and the future of marriage

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This election cycle, is presenting a series, Briefing Book: Issues '08 which will assess controversies that the next president must confront once he takes the oath of office.

In this story, we look at the courts and marriage. Can same-sex couples marry? Is such a right is guaranteed by state constitutions and by the United States Constitution?

As these controversies make their way to the U.S. Supreme Court, will the next president have the opportunity to appoint justices who'll address these questions?

Why it’s a problemFor same-sex couples, the rulings by the California Supreme Court on May 15 and the Connecticut Supreme Court on Oct. 10 were historic victories. Those courts ruled that their states' constitutions protect the right of same-sex couples to marry.

On Election Day, Californians go to the polls to decide a gay-marriage ballot question, the second time in eight years that the issue has been put to the voters in the nation's most populous state.

In 2000, California voters approved a ballot measure that said “only marriage between a man and a woman is valid and recognized in California.”

In March 2000, 61 percent of California voters passed Proposition 22, which specified in state law that only marriage between a man and a woman was valid in California.

But last May, the California Supreme Court overruled the statute enacted by Proposition 22. The judges said laws that limit marriage to one man and one woman violate the equal protection clause of the state Constitution.

What is on the California ballot on Election Day is a proposed amendment to the state constitution. It says what the 2000 ballot measure said — that only marriage between a man and a woman is valid. If voters approve it, it would essentially overturn the California Supreme Court ruling.

Both Republican John McCain and Democrat Barack Obama have said that they oppose granting legal recognition to same-sex marriages.

But neither candidate wants to alienate voters who support marriage rights for same-sex couples. And gay and lesbian campaign donors can be a powerful force, particularly in the Democratic Party.

McCain can't afford to forfeit the support of conservatives in his party who abhor gay marriage and who believe the California and Connecticut rulings are examples of judges imposing social policy changes on the electorate.

Apart from Connecticut and California, same-sex marriage is recognized only in Massachusetts, where the state’s highest court ruled in 2004 that the state’s constitution implied protection for marriages between two people of the same sex.

Forty-five states have laws prohibiting same-sex marriages, including 26 states with constitutional amendments that define marriage in the traditional terms: one man and one woman.

This year's California and Connecticut rulings may pose a problem for the 45 states that do not recognize same-sex marriages — if the United States Supreme Court overturns the 1996 federal law called the Defense of Marriage Act (DOMA).

That law, signed by President Clinton, says that no state shall be required to recognize any same-sex marriage performed in another state.

But if marriage to another person of the same sex is a fundamental right protected by the United States Constitution, then DOMA would be unconstitutional and same-sex marriages would be constitutionally protected in every state.

In that case, same-sex couples from California, Connecticut and Massachusetts could move to any of the 45 states that don’t recognize same-sex marriages and those states would be compelled to grant recognition to their marriages.

The U.S. Supreme Court’s Lawrence v. Texas ruling in 2003, which struck down state sodomy laws, seemed to indicate that the court might someday rule that there is a constitutional right of gays and lesbians to marry.

The question of marriage itself was not before the court in the 2003 case, but the majority opinion, written by Justice Anthony Kennedy, said, “Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."

The Constitution, Kennedy added, demands respect “for the autonomy of the person in making these choices.” Then he added, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

Does the “autonomy” of which Kennedy spoke include the right to marry?

The court has not yet said.

And that’s another reason why the Supreme Court justices appointed by either President McCain or President Obama will be so important.

Reacting to the Connecticut ruling, conservative leader Tony Perkins, head of the Family Research Council, said, "It is imperative both presidential candidates address the problems created by four activist judges in Connecticut."

He urged McCain and Obama "to explain what they would do as president" to ensure "that judges they appoint follow the law of the land and not legislate from the bench."

Both McCain and Obama have said they believe the states should decide their marriage policies. Both men have said they support civil unions, rather than full-fledged legal marriages between same-sex couples.

But McCain has been contradictory on civil unions, at times saying that he supports them, at other times saying he does not. "I do believe that people ought to be able to enter into contracts, exchange powers of attorney, other ways that people have relationships can enter into," he said in 2006.

On the day the California Supreme Court announced its ruling, Obama’s campaign issued a statement saying, “Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as President. He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage.”

McCain favors the proposed amendment to the California constitution.

“I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman, just as we did in my home state of Arizona," he said.

Obama is against the proposed California state constitutional amendment. “I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states,'' he said. 

Evolution and shifts in positionIn 2004, when he was running for the U.S. seat Senate in Illinois, Obama repeatedly said he opposed same-sex marriages.

“I’m a Christian, and so although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman,” he said in 2004 on Chicago TV station WBBM.

He told gay rights supporters in Iowa last year, “You want the word ‘marriage,’ and I believe that the issue of marriage has become so entangled, the word ‘marriage’ has become so entangled with religion, that it makes more sense for me as president, with that authority, to talk about the civil rights,” rights that would come from civil unions.

Obama also said in late 2003 that he was against repeal of the Defense of Marriage Act. But he switched his view on that question early in 2004 and said he would work to repeal DOMA.

Obama has said he is opposed to same-sex marriages, but he has not explained why he also opposes measures to ban them.

And Obama now thinks DOMA should be repealed. If he gets his way and it is repealed, then in time the states where same-sex marriage is banned would likely be forced to recognize the marriages of same-sex couples who move in from the states that permit same-sex marriages.

In that event same-sex marriages would be legal in all states, even if some states wanted to keep it illegal.

McCain, like Obama, opposes same-sex marriages, but he also voted against an amendment to the U.S. Constitution that would have outlawed such marriages. He did so, he said in 2006, “because I think the states should decide. That's the essence of federalism.”

The Arizona senator did say in 2006 that if the Supreme Court were to strike down DOMA, “then, and only then, would the problem justify Congress making the momentous decision” to amend the Constitution to outlaw same-sex marriages.

But it was far easier to enact DOMA than it would be to amend the Constitution, which requires a two-thirds vote in both houses of Congress, followed by ratification by three-fourths of the state legislatures.

How they have votedMcCain voted for DOMA in 1996. Obama was not a member of the Senate at that time.

Both men voted against the proposed amendment to the United States Constitution in 2006 that would have defined marriage as only between one man and one woman.

Surprises for the new presidentIt is possible that at some point in the next president’s term, the Supreme Court could decide a case that would determine whether the U.S. Constitution implicitly guarantees the right for same-sex couples to marry.

In his dissenting opinion in Lawrence v. Texas, Justice Antonin Scalia warned that the decision “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”

Yale law professor William Eskridge, a gay rights activist and a scholar whose research was cited in the majority opinion in Lawrence v. Texas, said in 2003 that “Justice Scalia is right in the long term” that Lawrence v. Texas will add to the momentum for recognition of gay marriages.

It also seems likely that one of the justices will retire during the next four years, setting the stage for a contentious Senate battle over confirmation of a Supreme Court nominee whose views on same-sex marriage would be of great interest to the senators questioning him or her.