By MARK SHERMAN
Associated Press
WASHINGTON (AP) - Gay marriage supporters see 41
reasons to fret over the 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.
Cornell University law professor Michael Dorf said those cases illustrate a widespread misperception about the justices.
"There is a commonly held but inaccurate view that
the Supreme Court does is to impose its views on the country. It very
rarely does that. Much more frequently, it will take a view that is
either a majority in some place or a majority of elite opinion, and
speed up acceptance," said Dorf, who was a Supreme Court law clerk to
Justice Anthony Kennedy.
The forces that mounted the legal challenge to
Proposition 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. Washington 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.
A high court loss for gay marriage advocates would
prevent same-sex marriages in the nation's largest state. It would not
affect the District of Columbia and the nine states - Connecticut, Iowa,
Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and
Washington - where gay couples can or soon will be able to marry.
But it could push back the day that many in the gay
rights movement, looking at strong support for gay marriage among
younger Americans, see as inevitable: the Supreme Court's endorsement of
full marriage equality nationwide.
Commenting after the court's action, Bonauto said
she believes the court can uphold an appeals court ruling that struck
down Proposition 8 in a way that applies to California only and "leave
to a later day questions about broader bans on committed same-sex
couples marrying."
Opponents of gay marriage look to another court
case, Roe v. Wade, that they say should serve as a cautionary tale. In
1973, the court voted 7-2 to declare that the Constitution protects a
woman's right to an abortion.
"Should the Supreme Court decide to overturn the
marriage laws of 41 states, the ruling would become even more divisive
than the court's infamous Roe v. Wade decision," said Tony Perkins,
president of the Family Research Council. "Marriage, unlike abortion
laws in the 1970s, has been incorporated into the state constitutions of
30 states. Voters in these states will not accept an activist court
redefining our most fundamental social institution."
To a degree, Perkins and Bonauto get some support
from one of the nine people with a say in the matter, Justice Ruth Bader
Ginsburg.
In February, Ginsburg questioned the timing of the
abortion decision and suggested it may have contributed to the ongoing
bitter debate about abortion.
"It's not that the judgment was wrong, but it moved too far too fast," Ginsburg said at Columbia University.
At the time of Roe v. Wade, abortion was legal on
request in four states, allowed under limited circumstances in about 16
others, and outlawed under nearly all circumstances in the other states,
including Texas, where the Roe case originated.
The court could have put off dealing with abortion
while the state-by-state process evolved, she said. Or her predecessors
could have struck down just the Texas law, which allowed abortions only
to save a mother's life, without declaring a right to privacy that
legalized the procedure nationwide, Ginsburg said.
"The court made a decision that made every abortion
law in the country invalid, even the most liberal," Ginsburg said.
"We'll never know whether I'm right or wrong ... things might have
turned out differently if the court had been more restrained."
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Online:
Supreme Court: http://www.supremecourt.gov
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