When the U.S. Supreme Court convenes behind closed doors Friday, the justices will weigh whether to jump headlong into the historic same-sex marriage debate -- or merely dip their toes in the roiling legal waters.
The high court could decide whether to rule once and for all on California's Proposition 8, the 2008 voter-approved ban on same-sex marriage. And it could choose to hear up to eight other cases that challenge the 1996 federal Defense of Marriage Act, which bars federal benefits to same-sex couples.
Depending on how far the court goes, it could end up legalizing gay marriage nationwide, banning it nationwide, or continuing the current state-by-state experiment in whether gays and lesbians can marry
and whether they are entitled to equal benefits under federal law.
All the cases on the court's docket involve lower court decisions declaring gay marriage restrictions unconstitutional.
Both sides in the gay marriage battle and legal experts have little doubt the Supreme Court will take up at least some of the cases to put its stamp on one of the country's most pressing social issues. The mystery is in how far it will go.
If the Supreme Court chooses not to review the challenge to Proposition 8, gay and lesbian couples will have the right to legally marry in California.
The justices are expected to release orders revealing their decisions the first week in December, which means they would hear arguments in the spring and rule on same-sex marriage by the end of the term in June.
"They're going to take one or more of the" cases on the Defense of Marriage Act, or DOMA, said David Boies, a lead attorney for two California couples challenging Proposition 8. "The more complicated question is what they do with our case."
Jane Schachter, a Stanford University law professor, agreed.
"There is sort of a circle at the core of all of this, which is DOMA, and from there it comes down to how broad to make the circle," she said. "One thing to think about is how much of the overarching issues do they want to get into."
For a variety of reasons, most experts say the Supreme Court has a more straightforward path to tackling the federal law than the California law. Foremost is the fact that numerous courts, including two federal appeals courts and a San Francisco judge, have invalidated DOMA, leaving the justices little choice but to evaluate a sweeping law enacted by Congress that has been deemed unconstitutional.
The Supreme Court is well aware that the Obama administration, which argues DOMA is unconstitutional, is on one side, while House Republicans are defending the law on the other.
In addition, experts say, the Supreme Court can rule on DOMA without expressly deciding the broad question of whether same-sex couples have a constitutional right to marry. Two federal appeals court have struck down DOMA on the grounds that it is unconstitutional to deny federal benefits to same-sex couples in states such as New York and Massachusetts that permit gay marriage. Nine states now fall into that category.
But the Proposition 8 case is stickier and allows the Supreme Court to save for another day the question of whether a state ban on gay marriage is unconstitutional.
The 9th U.S. Circuit Court of Appeals struck down Proposition 8 in a narrow ruling steering clear of broader legal issues, finding the law unconstitutional because it stripped away a previous right of same-sex couples to marry in California. There is a school of thought that the high court can let that ruling stand, permitting same-sex marriages in California but avoiding a decision that would extend to other states.
"I don't think they can wait on DOMA," said Vikram Amar, a UC Davis law professor. "But they can wait on the Proposition 8 stuff."
Karen Golinski, a San Francisco woman whose DOMA challenge is one of the cases on the court's docket, is eager for the Supreme Court to enter the legal fray.
"It's going to resolve it for all of us," said Golinski, who sued because her same-sex spouse was denied health benefits. "I feel confident the court is going to take at least one of the cases."
Howard Mintz covers legal affairs.
Most Popular Stories
- Frightfully Fun Films Return for Halloween
- Would Soccer Be Richer Without Small Clubs?
- Pfizer Approves $11 Billion Buyback Plan
- Cloud Lifts Microsoft's Quarterly Results
- Jennifer Aniston, Justin Theroux Set the Date
- IS Funded by Black Market Oil Sales, Racketeering
- Hollywood Eager to Grasp Hispanic Market
- Weekly Jobless Claims Rise but Remain Low
- Stocks Continue Strong After Opening Surge
- Teresa Giudice Must Serve Time in Prison