Ruth Marcus: The high court's same-sex marriage conundrum

BY RUTH MARCUS Published: December 12, 2012
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Supreme Court litigation is a bit like bread-baking. If the dough goes in the oven too soon, before it's had enough time to rise, the end product is unpalatable. Yet at a certain point, the oven beckons. Baking is key to the process.

This is the conundrum presented by the Supreme Court's decision to tackle the subject of same-sex marriage. For those who believe in marriage equality, the court's move is both exhilarating and scary.

To understand why, remember that the court agreed to hear two very different cases. One involves the constitutionality of the Defense of Marriage Act, and the question of whether the federal government, in states that recognize same-sex marriage, can refuse to provide some married couples the federal benefits available to others.

The court was widely expected to accept the DOMA case because the law was declared unconstitutional in the lower courts. Moreover, the DOMA issue does not call on the court to wade into the far more controversial matter of whether the Constitution affirmatively requires states to grant same-sex couples an equal right to marry.

How the court decides the DOMA case will be illuminating for how the justices might deal with that question. For example, how strict a test will the justices apply to laws that discriminate on the basis of sexual orientation? But striking down DOMA would be a much less consequential step — albeit an exhilarating one — than extending to same-sex couples a constitutional right to marry.

This issue is implicated by the second case, involving California's Proposition 8 ban on same-sex marriage. The court doesn't have to reach the constitutional question in the California case, and my guess is it won't. There are various off-ramps for the justices to take. For example, the court raised the question of whether those arguing to reinstate Prop 8 had standing to do so.