Gay marriage supporters see 41 reasons to fret over the U.S. Supreme Court’s decision to take up the case of California’s ban on same-sex unions.
While nine states allow same-sex partners to marry, or will soon, 41 states do not. Of those, 30 have written gay marriage bans into their state constitutions.
That fact is worrisome to those who firmly believe there is a constitutional right to marry, regardless of sexual orientation, but who also know that the Supreme Court does not often get too far ahead of the country on hot-button social issues.
“Mindful of history, I can’t help but be concerned,” said Mary Bonauto, director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders and a leader in the state-by-state push for marriage equality.
Bonauto was speaking before the court decided on Friday to take up cases on California’s constitutional ban on gay marriage and a federal law that denies to gay Americans who are legally married the favorable tax treatment and a range of health and pension benefits otherwise available to married couples.
In 2008, California voters approved the ban, Proposition 8, after the state Supreme Court ruled that gay Californians could marry. Since then, a federal appeals court struck down the constitutional provision, but did not authorize the resumption of same-sex marriages pending appeal.
Bonauto identified three earlier seminal rulings that once and for all outlawed state-backed discrimination, and observed that in each case the number of states that still had the discrimination on the books was far smaller.
Thirteen states still had laws against sodomy when the court said in 2003 that states have no right to intrude on the private, personal conduct of people, regardless of sexual orientation.
Interracial marriage still was illegal in 16 states in 1967 before the high court outlawed race-based state marriage bans.
In 1954, when the court issued its landmark decision in Brown v. Board of Education, 17 states had formally segregated school systems.
The forces that mounted the legal challenge to Prop. 8 have said all along that the right to marry is so fundamental that it should not depend on success at the ballot box or the votes of state legislatures. Lawyer Theodore Olson, representing gay Californians who wish to marry, said he will argue that there is a “fundamental constitutional right to marry for all citizens.”
But are there five justices, a majority of the court, willing to endorse that argument?
The fear among gay marriage proponents is that the court will refuse to declare that states can no longer define marriage as the union of a man and a woman, because to do so might provoke a backlash in public opinion and undermine acceptance of its authority.
Bonauto said she believes the court can uphold an appeals court ruling that struck down Prop. 8 in ways that apply to California only and “leave to a later day questions about broader bans on committed same-sex couples marrying.”
The U.S. Supreme Court’s decision Friday to review California’s same-sex marriage ban, Proposition 8, disappointed some Golden State gay couples who would have been able to wed if the court had refused to hear the case.
A federal appeals court ruling that had overturned the ban would have been the law of the state, opening the way to same-sex marriages in California.
“I’m not going to lose hope and lose faith. The winds of change are upon us,” said Elizabeth Chase, 30, an ad sales person who wants to marry her girlfriend and came to San Francisco City Hall on Friday to hear city leaders discuss court plans. City Hall is a popular place to marry, and heterosexual couples were tying the knot as city officials spoke.
“I’ve been waiting for three years to enjoy the same things these folks are enjoying,” Chase said as she looked longingly at a bride and groom.
“I would be lying if I didn’t say I was a little disappointed,” said Chief Deputy City Attorney Therese Stewart, who argued in court against Prop. 8. Stewart married a woman in summer 2008, before Prop. 8 ended court-approved same-sex marriage.
“Am I nervous? Yeah. I am optimistic as well,” Stewart said.