The San Jose Mercury News is reporting that today's arguments concern a case involving California's Proposition 8, a voter-approved ban that repealed a previous right for same-sex couples to marry in that state. Two same-sex couples challenged the ban. Before the couples took their challenge to federal courts, the California Supreme Court rejected their challenge, ruling that the voters' decision to amend the state's constitution trumped their authority to interfere.
The second case will challenge the Defense of Marriage Act. The justices will review the ruling of a lower court that found it was unconstitutional to deny benefits to married same-sex couples in states where same-sex marriage is legal.
"At its core, the issue is whether the federal government can deny benefits, which range from tax exemptions to Social Security, to couples who marry in states such as New York that have legalized same-sex marriage," the Mercury News reports.
The justice who is making a lot of same-sex marriage proponents nervous is Justice Anthony Kennedy. A conservative Catholic, Kennedy has shown support for both sides of the issues at stake but has also spoken out recently about the trend to allow nine unelected judges to decide politically charged issues such as same-sex marriage, health care and immigration rather than the elected members of Congress.
“I think it’s a serious problem," Kennedy said. "A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say. And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle basis.”
But some believe the Court will be influenced by shifting public opinion in favor of same-sex marriage, even though the vast majority of states (37) still outlaw it according to the will of the people. The goal would be to make same-sex marriage the law of the land and thus outlaw all state bans, something almost no legal expert expects will happen anytime soon.
Jim Campbell, a lawyer for Alliance Defending Freedom, which backs Proposition 8, said he believes the battle for gay marriage is "at some point in the middle. … The Supreme Court should resist demands to prematurely end the national debate."
Most legal experts agree and say the Supreme Court will probably show its usual reluctance to rule on social issues.
"Given the moving picture, my hunch is that they are going to move incrementally, not dramatically," said Jane Shachter, a Stanford University law professor.
A decision on the cases is not expected to be handed down until sometime in June.
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