This week’s arguments may give glimpse of Supreme Court’s hand in marriage cases

signIt seems like it was only yesterday that persons who favored marriage equality struggled for broad support. Even in the Left Coast bastion of Berkeley, we who planted “NO ON PROP 8” lawn signs awoke to find them taken, torn, or trashed. “Prop 8” was, of course,  Proposition 8, the ballot initiative that aimed to overturn a May 2008 state supreme court ruling that same-sex couples had a fundamental right to marry; in so doing, Prop 8 aimed to make a ban on such marriages part of the California Constitution. Six months after the initial ruling, on the same day in 2008 that Barack Obama was elected President, the same-sex marriage ban passed with 52% of the California vote. (photo credit)

But that was then, nearly 5 years ago. And now, as the U.S. Supreme Court takes up the constitutionality of Prop 8 and of the federal Defense of Marriage Act, America is in a very different place. Opposition to bans is ascendant in polls. Opponents are found on both sides of the political aisles – not only the lawyers trying the cases, but also the persons lending their names through amicus briefs or public statements. Notable in that last group are current President Obama, who’s moved to a position of support for gay marriage, and former President Bill Clinton, who’s repudiated DOMA though it was he who signed it into law back in 1996.

How these shifts will affect judicial deliberations is anyone’s guess, not the least because of the precise questions before the Court:

► Tomorrow morning, Justices will hear Hollingsworth v. Perry, the challenge to California’s Prop 8. The original cert. petition presented this question:

‘ Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.’

► On Wednesday, the Court will hear argument in United States v. Windsor, concerning the federal DOMA. Here’s the question presented in the original petition for a writ of certiorari:

‘Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.’

But on granting review, the Court added a 2d question to each case. Paraphrased, here it is:

Given that the governments of the United States and of California have refused to support the legal bans in place, does the U.S. Constitution give standing to the litigants supporting the bans (in the 1st case, an entity called the Bipartisan Legal Advisory Group of the United States House of Representatives; in the 2d, a group of state legislators)?

An answer of “no” would leave untouched lower courts’ invalidations of both Prop 8 and DOMA on equal protection grounds (here, here, and here); however, it would also leave unmade any final determination of the ultimate question. Limited rulings also are possible, along the lines of the government’s brief in Windsor (prior post) or the “menu of options” that NYU Law Professor Kenji Yoshino explores in this SCOTUSblog post.

The arguments slated for this week have had folks lining up since Thursday to get into the Court’s Grand Chamber. Persons farther afield will be able to listen to/read transcripts of each argument by the afternoon of the same day. The Q&A promises to indicate whether the Justices are ready or not to reach the bottom-line issue before the Court:

What does the U.S. Constitution have to say about same-sex marriage?

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