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Same-sex marriage's big day in court: What's at stake?

Jonathan Ernst / Reuters

Anti-Proposition 8 protesters are shadowed by a rainbow banner in front of the U.S. Supreme Court in Washington, on March 26.

It's a big week for the Supreme Court as justices hear two landmark same-sex marriage cases on consecutive days.


One is a challenge to the 1996 Defense of Marriage Act (more commonly known as DOMA), which bars federal recognition of same-sex marriages. The other is a challenge of California's Proposition 8, a ban on same-sex marriage that was approved by voters in 2008.

Here are answers to some of the key questions being asked about these cases -- which could have huge implications for hundreds of thousands of gay families, dozens of state laws and even the national political landscape.


Why is the Supreme Court hearing these cases now?

The Prop. 8 case and several different challenges to DOMA have slowly wound through lower courts over the years. Observers predicted justices would take one of the DOMA challenges but they didn't expect them to grab the Prop. 8 case, too. The thinking is that the justices feel it’s time to address the question of same-sex marriage, so they now have a state and a federal challenge (interestingly, the DOMA case they selected, United States v. Windsor, was the newest of the bunch).

Why are they being heard so close together?

The cases are related because they both address whether gays and lesbians have the right to wed. The federal case is more focused on the benefits that same-sex couples are denied under the Defense of Marriage Act, while Prop. 8 centers around the right to marry. Ultimately, though, gay marriage supporters say they are both about whether gays and lesbians are treated differently because of their sexual orientation.

Could the Supreme Court legalize gay marriage everywhere?

Paul Katami and Jeff Zarrillo, one of two gay couples fighting to strike down California's ban on gay marriage will have their case heard Tuesday at the Supreme Court.

The court can go many ways in its ruling in the California case. It could maintain the narrow focus that a federal court had in overturning Prop. 8, when it ruled that a fundamental right like marriage can't be granted and then taken away (couples were briefly allowed to wed in 2008 in the Golden State before voters approved Prop. 8, ending the practice).

Alternatively, the high court could say state prohibitions of same-sex marriage are unconstitutional, opening the door for gays and lesbians to wed in states where that's banned. Another possibility is that the justices could overturn the lower court's decision and reinstate the ban on gay marriage.

They could also say the group bringing the challenge doesn’t have standing. Yeah, that’s a lot of possibilities.

In the DOMA case, the justices also could address the constitutionality of gay marriage or they could find that the federal government should not be in the marriage business at all and instead leave that up to states to regulate.

If I’m a married gay couple, should I be worried that one of these rulings could affect my marriage?

Edie Windsor describes her 44-year relationship with same-sex spouse Thea Spyer, and how Spyer's death inspired her to fight for gay marriage rights in a case that will be heard in the Supreme Court Wednesday.

No. It's highly unlikely the Supreme Court would make any ruling that negatively affects laws permitting same-sex marriage in the nine states plus the District of Columbia that allow gays and lesbians to wed. There’s mostly just upsides for already-wed couples.

For example, if the court decides DOMA is unconstitutional, couples would then receive all of the benefits that have been denied to them under that federal law, such as the right to file joint taxes, the protections of the Family Medical and Leave Act, and the ability of surviving spouses to access veterans’ benefits. Edie Windsor, the DOMA plaintiff, said she had to pay some $363,000 in federal estate taxes after her wife died, a bill that she wouldn't have had if they were a heterosexual couple.

Could ministers be forced to preside over gay weddings?

It does not seem so. At this point, most of the laws allowing same-sex marriages or civil unions provide exceptions for religious institutions that object to the ceremonies (New Jersey's civil unions bill does not have such a provision but the state's attorney general has given a clear opinion that such groups would be). This is a key area of concern often expressed by opponents of same-sex marriage. 

What about civil unions? Why can't states just have those instead of same-sex marriages?

Well, six states do, and other states, like California, allow for domestic partnerships (these often guarantee the same rights and responsibilities as marriage). The Obama administration, in a legal argument it submitted calling for the end of Prop. 8, said creating such a parallel system was only meant to deny the “marriage” label and was therefore discriminatory against gays and lesbians. Opponents say these kinds of legal arrangements help preserve traditional marriage while giving gays and lesbians a path to be legally recognized as a couple.

I'm confused: civil unions, domestic partnerships, same-sex marriages?

Yes, a patchwork of state laws and constitutional amendments govern marriage across the country. 

What does the anti-gay marriage camp argue?

They say the tradition of marriage is thousands of years old and defines a male-female union. They also argue that the state has an interest in promoting traditional families, and that procreation can only happen between a man and a woman. Finally, they say decisions about who can marry should be left up to the voters, not judges or lawmakers.

When are we going to hear from the justices?

In June, stay tuned.

I feel like a lot has been going on around these issues the last month or so. Is that right?

Yes, with the Supreme Court deadlines to file legal briefs in the cases, dozens of businesses, scholars, health experts, religious groups, gay and lesbian advocacy organizations, NFL players and the Obama administration have weighed in.

More than 131 Republicans, almost all out of office and some who once opposed same-sex marriage, submitted their argument on why gays and lesbians should be allowed to wed. Former President Bill Clinton recently penned an op-ed saying DOMA, which he signed into law, was unconstitutional and should be repealed. Days later, Hillary Clinton publicly announced her support for gay marriage, with some observers suggesting this may signal her presidential ambitions for the 2016 campaign.

Any idea how the justices will go?

Nothing is for sure (look at last year's health care decision), though pundits believe Justice Anthony Kennedy could be the swing vote. Some observers think DOMA's days as federal law could be over, but what the justices decide to do with Proposition 8 -- the California gay marriage ban -- is impossible to predict.

Related:

Gay rights timeline: Key dates in the fight for equality

Couples leading Prop. 8 fight: We are very excited to have the end in sight

Rush to the altar: Public figures proclaim support for gay marriage before Supreme Court arguments

 

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