The US Supreme Court is set to issue two
rulings by the end of June that could reshape the definition of
marriage in the United States as it rules on the constitutionality of
a ban on gay marriage in California and a federal law that keeps
same-sex couples from receiving benefits.
The issue is one of complex legal issues involving state's rights and freedom from discrimination that could defy the usual balance of liberals and conservatives on the court's roster. It will have a profound effect on the country's millions of same-sex couples and their families who hope to gain the legal, financial and social advantages of being legally wedded.
The court is considering two laws, the federal Defence of Marriage Act (DOMA), passed by Congress in 1996, and California's Proposition 8, passed by voters in 2008, both of which specify that the institution of marriage be reserved for a man and a woman.
DOMA also denies federal benefits, such as social security and tax advantages, to same sex couple who are legally married in the states where they reside.
The top US court will no doubt rely heavily on legal theory to arrive at its decision, but it must decide amid the backdrop of fast changing public attitudes that have transformed the consensus over gay marriage even since California passed its ban on same sex unions four and a half years ago.
Back then the issue was controversial even in liberal california, and the ban passed only with the massive injection of funds by outside conservative groups, which used scare tactics about gay culture to win a narrow majority.
Now it's clear that California has a strong majority in favour of gay marriage, with 58 per cent of voters believing it should be legal, compared with 36 per cent opposed, according to a Los Angeles Times poll published this month. Other states are moving in the same direction.
A recent poll conducted by the Pew Research Center indicated growing acceptance of gay lifestyles. For the first time in Pew polling, just over half of Americans favoured allowing gay men and lesbians to marry legally, while 60 per cent said that homosexuality should be accepted by society rather than discouraged.
The poll indicates how significantly public opinion has changed on the issue in recent years. In 2001, Americans opposed same-sex marriage by a 57 per cent to 35 per cent margin. Now the figures are 51 per cent in favour and 42 per cent opposed.
Politicians are moving along with the tide. While US President Barack Obama's views on the issue during his first term might have been oblique, he is now clearly in favour of gay marriage. In the US Senate, 54 out of 100 members, including two Republicans have said they favour gay marriage.
Nine states - Connecticut, Iowa, Maine, Maryland, New Hampshire, New York, Massachusetts, Vermont and Washington, as well as Washington, DC, allow same-sex marriages.
Minnesota, Rhode Island and Delaware have approved same-sex marriage legislation, but laws in those states have yet to go into effect. Six other states are considered likely to pass similar laws, but there still are 30 states that have constitutional amendments banning same-sex marriage.
Legal experts predict that the court is likely to take a clearer stand on DOMA than on Proposition 8 because it defines marriage as between a man and a woman for purposes of federal law, such as taxes and inheritance.
"I think the court will invalidate that section of DOMA, and it may not even be 5-4," Margaret Russell, a law professor at Santa Clara University in California told dpa, referring to the usual split in the court along ideological lines.
If the federal legislation is struck down, gay couples who are legally married in their states would be eligible for the same tax, social security and other benefits as heterosexual couples.
On California's Prop 8, the waters are murkier because the issue not only relates to gay marriage but also to states' rights to legislate on issues according to local preference. Since even the state of California is not defending the law its voters passed, the most likely scenario is that the gay marriage opponents who appealed the lower court ruling against the ban will be denied standing in the case.
Such a ruling would in effect allow gay marriage to proceed in California once the legal technicalities are sorted out. But it would
leave the question open for other states to decide as they see fit - and subject the issue to further legal tussles.
For opponents of gay marriage that would be a victory of sorts, allowing them to institute bans in places where voters oppose the idea.
"The question before this court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states," said Charles Cooper, a lawyer for the Prop 8 supporters in the March court hearings.
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