The U.S. Supreme Court has agreed to hear challenges to the anti-gay Defense of Marriage Act (DOMA), which bars the federal government from recognizing state-sanctioned same-sex marriages. That was expected. What wasn’t so clear was whether the high court would also hear the challenge to California’s Proposition 8, through which voters amended the Golden State’s constitution to nullify same-sex marriage, which the legislature had authorized. Had the court not heard that challenge, an appellate court ruling against Prop 8 would have been upheld by default and California’s same-sex couples would have again been able to marry (which is why many had preferred the court take a pass on this one).
It is widely anticipated, and hoped, that the Supreme Court will recognize that the DOMA provision banning federal recognition is unconstitutional, treating gay couples as second-class citizens, and doing so on the basis of anti-gay animus. Moreover, while the court might now uphold Prop 8 and deny Californians marriage equality, there is at least the possibility that the court, through its Prop 8 decision, could declare that all states must allow same-sex marriage as a matter of equal protection under the law. Would that provoke a backlash that could strengthen the anti-gay contingent of the GOP? Probably. There is a sound argument that it would be better in the long run to let marriage equality advance through the states (as Jonathan Rauch argues here). There is also an argument that equal means equal. These are indeed interesting times.
More. Walter Olson expects the Supremes to punt.
Furthermore. James Taranto argues that constitutional law favors striking down the DOMA provisions, but upholding Prop. 8. If the court agrees, another California vote on same-sex marriage is likely, and more likely this time to favor marriage equality.