Same-Sex Marriage Inches Toward High Court

The Legal Battle Over Gay Marriage

Advocates are hoping two cases now in the federal courts may signal a turning point in the fight for gay marriage.

A federal court in Boston ruled last week that same-sex married couples deserve federal recognition. That case, along with another in California, is likely to move the battle closer to the U.S. Supreme Court.

One thing both sides agree on is that the stakes have never been higher.

Last week's ruling that the federal government has to give marriage perks to gay couples married in Massachusetts was a major blow to the Federal Defense of Marriage Act — DOMA. And it sent opponents out on the road this week to sound the alarm.

Brian Brown with the National Organization for Marriage is touring about 20 states, imploring voters not to be "cowed" by activist judges. "It's up to you," he says. "If we don't have 2 million activists, we're not going to be able to put the pressure on courts and say, 'No.' These judges ... think that their view of marriage is more enlightened than yours — and they don't care!"

But advocates say courts are just doing their job — making sure laws don't violate the Constitution. They see last week's decision as a major breakthrough.

"Times are changing. And once one court is willing to strike a blow in this area, it sort of becomes like dominoes," says Richard Socarides, former Clinton adviser on gay issues. He says even though the Massachusetts decision is relatively narrow, it paves the way for more, including the much more aggressive case in California that argues any ban on gay marriage is unconstitutional.

"I mean, I think you're gonna to see as these cases mature — what is gonna start as trickle, but then which will pretty soon seem as an avalanche," he says.

But even advocates concede if these cases end up — as expected — at the Supreme Court, gay marriage may well hit a wall.

"It's a big risk, big gamble. I don't see that kind of decision coming out of this court in the next few years," says Georgetown University law professor Nan Hunter. She says she worries the California suit especially may be pushing too far too fast. From the start, even many advocates of gay marriage argued such an ambitious challenge was premature.

"I would feel a lot more confident if their strategic decisions about timing had been made in concert with an alliance of groups, rather than this cowboy effort to take it up," she says.

Northwestern University law professor Andrew Koppelman says the Massachusetts case may succeed in chipping away at DOMA, but he agrees the lawyers who are swinging for the fences in California are more likely to strike out at the Supreme Court.

"You know, in some ways, the question is: 'Do you want to hit a single or do you want to hit a home run?' " he says.

Gay marriage is legal in only five states, and Koppelman says justices are loath to stretch so far ahead of public opinion. For example, he says, even years after the 1954 Supreme Court decision clearing the way for blacks and whites to go to school together, the court was still ducking the question of whether blacks and whites could marry.

"It dismissed cases, avoided hearing cases, and one member of the court is reported to have said one bombshell at a time is enough," Koppelman says.

It may be what President Obama is thinking as well, in the context of gay rights.

With midterm elections approaching, and pressure mounting for him to reverse the policy on gays in the military, administration officials won't even comment on last week's decision on gay marriage.

The president has been walking a fine line on DOMA, saying he opposes it but has to legally defend it. From his perspective, a final decision from the Supreme Court could only be a relief.

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