WASHINGTON — The U.S. Supreme Court turned to same-sex marriage Friday in a big way, by agreeing to review a California ballot measure that banned it and a federal law that denies benefits to married same-sex couples.
In an ambitious move, the justices agreed to take another look at a lower court's decision striking down California's Proposition 8. Simultaneously, they agreed to consider challenges to the federal Defense of Marriage Act, which prevents same-sex married couples from receiving a host of federal benefits.
The separate cases, to be heard next year, will see the often-divided high court enter into hot-button political territory and tricky constitutional terrain.
It “tees up the fundamental question of whether the Constitution's promise of equality for all persons applies to gay men and lesbians when it comes to marriage,” declared David Gans, the civil rights director of the Constitutional Accountability Center, which supports same-sex marriage.
Meeting in a private session Friday morning, justices had to choose from among 10 appeals that deal in some fashion with same-sex marriage. Eight of the appeals cases challenged the federal Defense of Marriage Act. One other appeal involved an Arizona law on benefits for state workers, and one dealt with California's Proposition 8.
The justices' action came a day after Maryland issued its first same-sex marriage licenses, after voters approved a ballot measure last month.
Advocates from both sides voiced confidence Friday that they will prevail once the court hears arguments, which could happen in March.
California Attorney General Kamala Harris, an opponent of Proposition 8, said the court's decision to hear the case “takes our nation one step closer to realizing the American ideal of equal protection under the law for all people,” while National Organization for Marriage Chairman John Eastman called the decision “a strong signal” that the Supreme Court will reverse the lower courts and uphold Proposition 8.
At a dance club near California's State Capitol, a handful of same-sex marriage advocates, hoping the court would decline to hear the case, had waited for hours for the decision Friday and were crestfallen when it came. Ken Pierce, a spokesman for the Sacramento advocacy group Equality Action Now, lamented that “we've waited so long” for same-sex marriage to be upheld.
As is customary, the justices didn't explain their decision about which cases to hear. No decision was announced on the Arizona case.
The California state ballot measure declared that “only marriage between a man and a woman is valid or recognized.” The state's voters approved it in 2008 by 52-48 percent, casting into limbo the status of same-sex couples who had already been married in the state. More than 18,000 same-sex marriage licenses were issued in California before the ballot measure passed.
In a narrowly written decision issued in February, the 9th U.S. Circuit Court of Appeals struck down Proposition 8 on the basis that it stripped individuals of rights that had previously been granted, when gay marriages were permitted.
The U.S. Supreme Court might decide that the Constitution protects same-sex marriage rights in all states, or just in California, or they might uphold Proposition 8. Justices also left themselves a possible escape route if they decide that the individuals who support Proposition 8 might lack the legal standing to sue.
The appellate court decision striking down the California ballot measure didn't present a conflict with decisions in other appellate circuits, which is often a criterion for the Supreme Court deciding to hear a case. Although nine states and the District of Columbia now authorize gay marriage, no other state has put itself in California's position of first granting and then revoking a right to same-sex marriage.
Nebraska voters in 2000 passed a constitutional amendment that said the state wouldn't recognize marriages, civil unions or domestic partnerships between same-sex couples.
Same-sex marriage is legal in Iowa, though Republicans tried to pursue a constitutional ban after the Iowa Supreme Court in 2009 ruled unanimously in favor of same-sex marriage. Supporters of an amendment turned their ire against the justices, leading to the ouster of three members of the high court in 2010. A similar attempt to remove another justice failed last month.
It could be a sign of changing attitudes on the issue found in September by a World-Herald Poll. Most Nebraskans said they now favor legal recognition of same-sex unions.
The Defense of Marriage Act cases that the Supreme Court will hear involved appellate courts striking down a federal law — something the high court usually wants to review.
One section of the law denies a host of federal economic and other benefits to same-sex couples: They can't save money by filing joint tax returns or share federal health insurance, and surviving spouses can't collect Social Security survivor benefits, among many other restrictions.
Judges on the Boston-based 1st U.S. Circuit Court of Appeals struck down the law's provision, while acknowledging that the final decision wouldn't be up to them.
“Only the Supreme Court can finally decide this unique case,” conceded Judge Michael Boudin, whom President George H.W. Bush appointed.
The case will be heard some time before the court's 2012 term expires next June. As with other politically charged disputes, it's certain to attract dozens of “friend of the court” briefs from interested parties on both sides.
Inevitably, some will target Justice Anthony Kennedy in particular. He was on the losing end of the court's politically charged 5-4 decision in June to uphold the health care law. On previous gay rights cases, though, the Reagan administration appointee has twice authored opinions striking down state measures deemed to be discriminatory.
This report includes material from The World-Herald.