The U.S. Supreme Court is hearing two historic gay marriage cases this week.
One of those cases is a challenge to the Defense of Marriage Act, which says the federal government doesn't recognize same-sex marriages. Many original backers of DOMA have renounced it, and gay rights activists are confident the high court will kill the 1996 law.
The other case is more uncertain. Today, the high court will tackle a dispute over California's Proposition 8, a voter-approved ban on gay marriage in the Golden State.
A judge and a federal appeals court ruled Prop 8 was unconstitutional, and a coalition of anti-gay marriage advocates have asked the Supreme Court to revive the law.
It's possible that the high court could issue a narrow ruling that would keep gay marriage legal in California. But the gay couples opposing Prop 8 want a broader ruling, The National Law Journal has reported.
Their lawyers (the odd couple of liberal David Boies and conservative Ted Olsen, who opposed each other in Bush v. Gore) will argue for a "50-state result." They want the Supreme Court to say it's illegal for any state to deny gay couples marriage licenses.
"We believe a 50-state result is the right result under the due process clause and the equal protection clause," Boies told NLJ.
Boies says the arguments against gay marriage have been debunked, including the argument that only straight people can marry because they can procreate the old-fashioned way.
The procreation argument means that "the State could constitutionally deny any infertile couple the right to marry," Boies says. Prop 8 supporters "seem to have no understanding of the privacy, liberty, and associational values that underlie this Court's recognition of marriage as a fundamental, personal right," according to Boies.
The idea that the Supreme Court could rule that marriage is a fundamental Constitutional right is probably the doomsday scenario for the anti-gay marriage movement.
Austin R. Nimocks, one of the lawyers defending Prop 8, mentioned that fear to the Wall Street Journal today, arguing the justices shouldn't step into such a new political debate.
"What we don't need at this juncture of a very young and significant debate on marriage is the Supreme Court presenting the nation with a 50-state solution that redefines marriage and removes the question from the hands of the people," Nimrocks told the Journal.
While the fear of a 50-state solution is real, it seems unlikely that the court's swing voter Justice Anthony Kennedy would impose that requirement on every state.
Kennedy has issued two strong opinions in favor of gay rights, but he's also a fierce supporter of states' rights.
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