Marriage and the Supremes

What will the highest court say about same-sex matrimony?
By JEFF INGLIS  |  June 2, 2010

Fighting back: Two cases in federal court here in Massachusetts could help turn the national tide against DOMA. By Deirdre Fulton.

Open service: Repeal of military’s gay ban moves forward. By Kegan Zema.

Visiting hours: Obama expands rights of same-sex partners. By Andrew Steinbeiser.

It's a given that, at some point — whether in these DOMA challenges or some other future cases — the US Supreme Court will hear a case relating to same-sex marriage. Can we read any tea leaves for indications of how they will rule?

Quoted in a National Law Journal article last August, Michael Dorf of Cornell Law School predicted that the justices would take a broader view than just examining "technical legal issues," saying they would "think about whether it's right" in light of their individual views.

With the departure of Justice John Paul Stevens, who has been the court's leader in opposing discrimination and protecting gay rights, we have only two recent rulings to examine for guidance.

In January, the court reversed conventional wisdom in a split decision, with the conservative majority saying it is not gays and lesbians who needed protection from "harassment as a result of public disclosure" of their sexuality, but rather the opponents of same-sex marriage who face public scorn for their views and need legal protection for their freedom of expression.

And in March, a solo ruling by Chief Justice John Roberts Jr. refused to prevent same-sex marriage from becoming legal in Washington, DC, basing his decision in part on the failure of Congress to act on that matter. Justices reviewing a challenge to DOMA will encounter a very different stance from Congress, and may well base their decisions in part on that.

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