In the ongoing legal battle between people who just want to marry each other and people who have an antiquated definition of marriage, the Supreme Court is expected to decide this week whether to review two major roadblocks to equal rights for same-sex couples. If the high court decides that weighing in on the state-constitutionality of Prop 8 is not of their concern, then the State of California could get back to marrying gay couples in time for some awkward family holidays.
Although the agenda item was originally set for last week, the Supreme Court will convene this Friday to decide whether or not they will review the Ninth Circuit Court's earlier decision that ruled the gay marriage ban unconstitutional. In court briefings, Prop 8's original sponsors from ProtectMarriage.com defended their narrow definition of marriage, saying: "Californians of all races, creeds, and walks of life have opted to preserve the traditional definition of marriage not because they seek to dishonor gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society's legitimate interests, and they cannot yet know how those interests will be affected by fundamentally redefining marriage."
Same-sex marriage supporters, on the other hand, argued in court briefs that the question of allowing states to discriminate against gays and lesbians in this way could become a turning point in contemporary civil rights.
In his Ninth Circuit ruling, Judge Stephen Reinhardt pointed out that the legislation was unconstitutional in the state of California, but only on "the narrowest grounds," leaving the broader question of whether the Constitution should ever be able to deny same-sex couples the right to marry open to other courts.
In addition to the Prop 8 issue, the court will also decide this week whether to hear several challenges to the Defense of Marriage Act. Although those cases don't explicitly limit gay couples' right to marry, they do refuse to recognize same-sex marriages for the purposes of many federal programs. While some court watchers speculated that the Justices would lump the Prop 8 and DOMA cases together in order to "get it done" and resolve the same-sex marriage issue in one fell swoop, Kenji Yoshino a professor at NYU School of Law said this week that it seems likely the high court will pass on Prop 8 in favor of one of the DOMA cases which deal with the issue at a federal level
According to the San Francisco City Attorney's office, if SCOTUS declines to take the case or "denies cert," as the lawyers say, same-sex marriages can resume in California as soon as the Ninth Circuit issues a mandate to do so — a procedural step that should only take a day or two to push through.
SCOTUS needs four justices to agree to take on each issue — Prop 8 or any of the DOMA cases, but five to issue a ruling, so court politics are also at play here. Although there's still a conservative majority on the court, Justice Anthony Kennedy is expected to be the swing vote should the court take it on. Justice Kennedy has sided with gay rights advocates in several prior cases, but same-sex marriage supporters also warn that he is by no means guaranteed to side with Team Gay Marriage on this one.