The question of whether same-sex couples have
the right to marry could be settled once and for all when the
US Supreme Court hears arguments next week in two cases on gay
Public opinion has been shifting on the issue as more Americans support gay marriage. A Washington Post-ABC News poll released this month showed an all-time high of 58 per cent of Americans believe same-sex marriage should be legal.
But gay and lesbian couples seeking a marriage licence face a patchwork of state-by-state laws with nine states and the District of Columbia allowing them to wed and 38 others outlawing such unions.
"There can be no doubt that this country is on a one-way road to marriage for loving and committed gay and lesbian couples," said Chad Griffin, president of the gay rights group Human Rights Campaign.
The Supreme Court is to hear arguments in two cases, Hollingsworth v Perry and US v Windsor, that have the potential to reshape the landscape. The cases involve a California law known as Proposition 8 that bans same-sex marriages there, and a federal law, the Defence of Marriage Act (DOMA), which keeps the US government from offering benefits to same-sex couples.
Advocates of same-sex marriage hope the court's nine justices will rule that same-sex marriages are protected under the US Constitution and overturn existing bans on gay unions.
Opponents of same-sex marriage want to see the court protect the traditional definition of marriage as that between a man and a woman.
"The Supreme Court should not usurp democratic authority from citizens and their elected officials," said Ryan Anderson of the conservative Heritage Foundation think tank. "Let the political process do its work. The definition of marriage is not something for activist courts to decide."
The court however could sidestep the key issue altogether, and focus instead on jurisdictional issues about whether it is allowed to hear the cases and whether the parties involved have standing to make legal arguments.
On Tuesday, arguments centre on California's Proposition 8, a measure passed by voters to ban gay marriage after a California court had ruled that the state must allow homosexuals to marry. Two lower courts issued rulings that would have overturned California's ban.
On Wednesday, the court will focus its attention on the Defence of Marriage Act. The case involves a woman who had to pay estate taxes after her lesbian partner died. The couple had been married in Canada. A heterosexual couple would not have had to pay the taxes under laws that do not tax property left from one spouse to the other.
President Barack Obama came out in support of gay marriage last year and advocated the position as he was sworn in for a second term in January.
"Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law," he said. "For if we are truly created equal, then surely the love we commit to one another must be equal, as well."
His Justice Department said last year it would no longer defend Congress' 1996 Defence of Marriage Act (DOMA).
The president's position leaves the government in the unusual position of not arguing on behalf of an existing law at the Supreme Court, leaving instead a group of lawmakers to argue in favour of DOMA. The government has also filed a brief expressing agreement with the pro-gay marriage camp in the California case.
Bill Clinton, who signed DOMA into law as president, said this month it was time to overturn the law.
"On March 27, DOMA will come before the Supreme Court, and the justices must decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional," he wrote in the Washington Post. "As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution."
Polls show Democrats, like Obama and Clinton, are more likely to support gay marriage than Republicans, but the breakdown changes with age as more young people support gay marriage regardless of party.
Republicans remain divided on the issue - with many worried about isolating the socially conservative wing of the party, but others expressing solidarity with gay family members or friends, or simply willing to cede the issue to focus on economic issues.
In a sign the winds may be changing regardless of what the court decides, voters in November approved same-sex marriage on the ballot in Maine, Maryland and Washington state, in the first such passages by voter referendum. Decisions in other states had either come through state legislatures or the courts.
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