The U.S. Supreme Court is poised to take up the issue of gay marriage in California as soon as Friday morning. The moment has prompted nervous debate within the gay-rights movement about the best path to achieve gay marriage. If the justices opt not to hear the Proposition 8 case, then a federal appeals court ruling that found the 2008 state ballot measure banning same-sex marriage unconstitutional would stand, clearing the way for marriages to begin. If the justices take up the case, a ruling would not come until next year and gay marriage would remain on hold until then, or longer depending on how the court rules.
Were the high court to decide to rule on Hollingsworth vs. Perry, it could lead to a historic victory legalizing same-sex marriage nationwide. But gay activists are well aware that the court could rule against them and throw the movement back at a time when same-sex marriage has seen a series of election victories at the state level. Opponents of gay marriage, by contrast, are eager for the Supreme Court to weigh in and are hoping it will block the growing legalization of same-sex unions.
At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage. These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.
I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.
The cases present a profound test of the Justices’ judgment. The plaintiffs’ claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively. The striking feature of these cases—not present in any others I have ever seen—is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.