FedSoc Blog

High Court Considers Same-Sex Marriage Cases for Docket


by Publius
Posted December 07, 2012, 1:51 PM

According to The New York Times:

At their private conference on Friday morning at the Supreme Court, the justices are considering whether to add one or more cases concerning same-sex marriage to the docket. The court may issue its decision as early as Friday afternoon. 

One case the justices may take is a California case that could establish a constitutional right to same-sex marriage. The second is narrower, on the constitutionality of a part of the federal Defense of Marriage Act of 1996.

Section 3 of the law defines marriage as only between a man and a woman for purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)

The California case has the potential to establish a right to same-sex marriage, effectively striking down the bans on such marriages in 39 states. The Defense of Marriage Act case, no matter the result, would be more likely to let those laws stand.

The court is likely to hear at least one case on same-sex marriage this term, with a decision expected by June.

Thirty states prohibit same-sex marriage in their Constitutions and in another nine it is proscribed by statute. Yet this year, ballot measures legalizing same-sex marriage were approved in Maine, Maryland and Washington State. In Minnesota, which already prohibits same-sex marriage, voters rejected a bid to add that prohibition to the state’sConstitution. President Obama announced his personal support for same-sex marriage in May, saying individual states should decide on its legality.

The justices tend to say they are not influenced by public opinion. But they do sometimes take account of state-by-state trends, and the latest developments will not escape their notice.

Support for same-sex marriage among the public has been growing, but the country remains divided. In a Pew poll conducted in October, 49 percent of respondents said they favored allowing gays and lesbians to marry legally and 40 percent were opposed. Four years earlier, in August 2008, the numbers were just about reversed: 39 percent in favor and 52 percent opposed.

A strong majority of younger Americans now support same-sex marriage. In a Gallup Poll conducted last month, 73 percent of people between 18 and 29 years old said they favored it, while only 39 percent of people older than 65 did.



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