The United States Supreme Court begins two days of hearings tomorrow morning on a pair of cases that have the potential to slice through the often emotional tangle of political debate on gay rights in America, particularly as pertains to marriage, and dramatically to expand legal protections for gays and lesbians.
While there is no knowing which way the nine justices will fall when they issue final rulings, probably in late June, the mere fact of their taking the cases has raised expectations that the US is at a turning point in its treatment of homosexuals. The omens, at least, suggest that change is afoot. As they have approached, the hearings have prompted a wave of endorsements of gay marriage, even from Republican quarters.
Recent polls have shown a clear shift in public opinion towards gay marriage. A recent Gallup poll showed that 54 per cent of Americans supported federal recognition for gay couples, versus 39 per cent who disagreed. Meanwhile the airwaves have recently been filled with political figures trying publicly to corral the justices into the gay marriage camp. They have included former US Secretary of State Hillary Clinton as well as Rob Portman, a Republican senator from Ohio, who said he had changed his mind after his son came out as gay.
At the weekend Karl Rove, the Republican consultant, said he could imagine the next presidential nominee from his party supporting gay marriage. Last month, a coalition of senior Republicans, including former presidential runner Jon Huntsman, filed a brief to the court supporting gay marriage. And among the guests invited by the Court to attend the hearings is a lesbian cousin of the Chief Justice, John Roberts. Queues of people hoping to get into the hearings had already formed at the Court at the weekend.
Tomorrow, the Justices will consider a challenge to Proposition 8, the voter-supported initiative that overturned a California Supreme Court ruling that had legalised gay marriage in that state. Tomorrow they turn their attention to the constitutionality of the 1996 Defence of Marriage Act, DOMA, which defines marriage as being between a man and a woman only. The effect of DOMA is to deny gays and lesbians the federal rights that straight married couples can take for granted – for instance on taxation and inheritance issues – even if they live in the small handful of states that have themselves legalised gay marriage.
For now, nine states and the District of Columbia have gay marriage on their books while a dozen others recognise more limited “civil unions” or “domestic partnerships”. But 29 states have added explicit gay marriage bans to their constitutions in recent years. Those provisions could become unconstitutional overnight if the Supreme Court comes down clearly against DOMA and Proposition 8, experts say.
On the other hand, the Court may decide to do nothing and the struggle between pro- and anti-gay-marriage forces – the civil rights battle of this era – would continue unabated. Or it might take a nuanced middle ground that might force those nine states with civil unions to offer full marriage rights but leave those with constitutional bans in the other states, including California, unaffected.