By: Jess Bravin of The Wall Street Journal
WASHINGTON—The Supreme Court for the first time entered the debate over gay marriage Friday, announcing it would decide whether a federal law denying benefits to same-sex spouses violates the Constitution.
The high court also said it would accept a case involving California's Proposition 8, a 2008 state measure that barred same-sex marriages in the state.
The move means that a defining legal moment is set to come by next June after a year in which gay marriage assumed even greater prominence in the national debate. President Barack Obama in May said he personally believed gay couples should enjoy the right to wed, becoming the first sitting president to take that stand. In November, Maine, Maryland and Washington state became the first states to approve gay marriage at the ballot box.
The Supreme Court said it would hear a case from New York involving the 1996 federal Defense of Marriage Act, which denies federal recognition to same-sex marriages conducted in the states that permit it.
Federal appeals courts in Boston and New York already have found the Defense of Marriage Act unconstitutional, saying it punishes a minority of lawfully married people without sufficient justification. The Obama administration, while continuing to enforce the law, has declined to defend it in court, agreeing with plaintiffs that constitutional principles of due process and equal protection don't permit such discrimination.
The Republican-controlled House stepped up to defend the law, hiring a prominent conservative litigator, Paul Clement, solicitor general in the George W. Bush administration, as its advocate.
Opponents of gay marriage say the Supreme Court's decision will be a chance to put the brakes on lower courts.
"It's the ideological blinders of judges at this point. There is immense cultural pressure to favor same-sex marriage," said Brian Brown, president of the National Organization for Marriage, speaking before Friday's announcement.
"We have been succeeding because DOMA looks like the double standard that it is," said Mary Bonauto of Gay and Lesbian Advocates and Defenders, a group representing same sex couples in some of the cases. "The government is supposed to treat people who are alike alike," but the Defense of Marriage Act "treats legally married people as if they were single," she said.
While the cases involve same-sex marriage, they don't directly raise the core question of whether the U.S. Constitution's guarantees of equal protection, due process and individual liberty mean that same-sex couples have a fundamental right to marry.
Instead, the gay-marriage issue is arriving at the high court in increments. The Defense of Marriage Act cases look at instances where gay couples are already legally married under state laws and ask whether the federal government can deny them benefits to which they would be entitled had their spouse been of the opposite sex.
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Before the 1996 law, the federal government simply accepted as valid any marriages authorized by states, which historically have had authority over matters of family law. Backers of the law say the federal government has legitimate reasons for denying recognition, such as saving money by not paying survivors' benefits, but lower courts have found those proposed reasons insufficient to justify discrimination.
The plaintiffs in one case, known as Gill v. Office of Personnel Management, include 10 gay couples and survivors, among them Dean Hara, widower of former Rep. Gerry Studds (D., Mass.), who has been denied the pension and insurance benefits otherwise provided to spouses of federal employees.
The Proposition 8 case in California also doesn't necessarily force courts to decide on a fundamental gay-marriage right. A federal appeals court in San Francisco struck down the proposition on narrower grounds, saying the state couldn't withdraw a previously recognized right from a minority that has suffered discrimination.
Some 18,000 gay couples were married in California after the state supreme court found in May 2008 that the state constitution permitted no discrimination in authorizing couples to marry. The following November, a voter initiative amended the state constitution to limit marriage to heterosexuals.
The Supreme Court's liberal wing—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—is likely to treat the Defense of Marriage Act with great skepticism. Conservative Justice Antonin Scalia, the court's most outspoken opponent of gay rights, is expected to be more deferential to the congressional statute, probably joined by Justice Clarence Thomas. Justice Samuel Alito has no well-defined record on such questions, but typically takes conservative positions on social issues.
A larger question mark hangs over Chief Justice John Roberts, who in cases such as the June decision on Mr. Obama's health-care law has been sensitive to the court's long-term institutional interests in maintaining credibility with the public and other branches of government.
If Chief Justice Roberts votes with the opponents of gay marriage, the deciding voice almost certainly will be that of Justice Anthony Kennedy, who has been the court's most impassioned defender of gay rights.
In 1996—the same year the Defense of Marriage Act was passed—an opinion by Justice Kennedy struck down Colorado's Amendment 2, a voter initiative that barred state and local government from protecting gays from discrimination. Noting that the initiative nullified antidiscrimination measures previously enacted by Denver and other cities, Justice Kennedy wrote that it seemed born of "animosity" toward gays and served no valid purpose.
Seven years later, in Lawrence v. Texas, the court overruled its own 1986 precedent to strike down a state law criminalizing gay sex. "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct," Justice Kennedy wrote for the court.
The Constitution's framers used such broad terms as "liberty" without defining them because "they knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress," Justice Kennedy wrote.
In dissent, Justice Scalia accused the majority of signing on to the "so-called homosexual agenda," and he said its reasoning would likely lead to recognition of same-sex marriage.