Although the Court has the right to do nothing, the likelihood is that it will be almost forced to take up challenges by the Religious Right and other conservative groups against two recent rulings: one, by the Circuit Court of Appeals in San Francisco, struck down California’s anti-gay Proposition 8; the other, by a federal appeals court in Boston, ruled that the Defense of Marriage Act or DOMA discriminates against married same sex couples and is unconstitutional when it comes to equal protection under the law.
While the pro-gay zealots among us are already ordering the champagne, in my humble opinion, given the somewhat conservative nature of the current Court and the rather narrow rulings it has made in the recent past, I don’t think it’s likely it will make gay marriage the law of the land, but rather, at most, strike down DOMA which would give couples in states where same sex marriage is recognized certain rights enjoyed now only by heterosexuals – filing of joint tax returns, Social Security survivor benefits, etc. (But remember with that comes issues of additional costs and less taxes collected.) Most probably, the Court will consider same sex marriage a states rights issue which will still leave legal gay link-ups illegal in the majority of the country and not force states without same sex marriage to recognize marriages in other states that do.
But who knows? Court watchers say the nine member court is divided 4 to 4 on the question of marriage equality, with moderate Justice Anthony Kennedy, whose pro-gay views were actually cited in the Frisco/Boston rulings, considered a swing vote.
So maybe we can’t uncork the champagne yet, but putting it on ice wouldn’t be a bad idea.