UPDATE: According to the New York Times, the Supreme Court agreed this afternoon to decide on the constitutionality of the Proposition 8 appeal and the Defense of Marriage Act.
It is, arguably, the most significant social battle
in America's courts since Roe v. Wade
or even Brown v. the Board of Education
. It is an issue that is being fought in every state (as of the most recent Election Day, nine approve; 31 disapprove) and a situation that the White House has staked out its territory in. And it is a landmark case that is about to hit its flashpoint.
When Proposition 8's constitutional ban on same-sex marriage was approved in California four years ago, civil rights lawyers slowly began the appeals process, and it was really only a matter of time until the case made its way up to the Supreme Court.
On Friday, the nine justices met to discuss the future of this important legal provision; in other words, whether to hear the case. But the group left the conference silent, with no word on the impending same-sex marriage courtroom showdown. However, the Supreme Court will reconvene today and the week after, which will be its last private meeting until the middle of January.
Around this time last year, the court made the decision to hear the health care reform law arguments, leading to the decision that defined the court in 2011.
Now, once again, it is faced with a pressure just as grand in size; the speculation on what will happen begins.
If the Court does decide to hear the case, The arguments will come in March and April with a decision in June -- the same fate of the Obamacare procedure. The main constitutional question in the fact pattern will be the following: Does the Constitution give the right to people to marry regardless of sexual orientation? That legal provision will have the 14th Amendment's application of equal protection under the law in the states as its focal point.
But the court is not running on much precedent with Prop 8. When the 9th U.S. Circuit Court of Appeals struck down the California ban, the argument was purposefully basic with a decision to overturn based off the idea that, since Californians already had the right to same-sex marriage, the state couldn't simply take that away from them. By doing so, the Circuit Court avoided a social proclamation on the case, ushering
that historic responsibility into the hands of the highest court in the land.
If the court does not decide to hear the case, we'll return to state-by-state battles that have created the bulk of the progress up until now. One fell swoop would be replaced with one-by-one. The piecemeal approach is a viable option, given that marriage law has normally been left to the states. With the factor of time aside, an abstaining call from the court could be better than an all-out rejection for same-sex marriage advocates.
And then there's always Plan B: the Defense of Marriage Act. The Obama administration has been urging the Justice Department to bring this explosive law from the Bush years to court. But the constitutional question changes in DOMA; now, instead of the right to marry, the court is answering the question "Can a law passed by Congress prevent homosexuals from receiving federal benefits of marriage?" This provision will also evoke the 14th Amendment but also have to deal with the federal benefits factor.
As you can see, the legal options for same-sex marriage advocates here provide more opportunities to advance the cause rather than delay its nationwide progress. Unless the court produces a damning condemnation of the practice all together (which it won't -- keep in mind that it's 2012; we're a bit more modern than we think), the question will either be answered in one fell swoop or one-by-one, as mentioned before.
Knowing the court, though, literally anything could happen. Regardless, we're about to find out what that "anything" actually could be.
It's time to head to court.