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Minority of One blog

The Supreme Court and gay marriage

Steve Chapman

4:39 PM CST, December 7, 2012

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The Supreme Court has agreed to hear two cases challenging laws against same-sex marriage, and that's good news for supporters of the concept. Each of these cases gives the justices room to expand the rights of gay couples without taking the huge step of asserting their constitutional right to wed. And I'm guessing that's what they will do.

The first case concerns the Defense of Marriage Act, which denies to same-sex spouses a host of federal benefits granted to opposite-sex spouses. It would be easy for the court to strike it it down, because it treats one set of spouses worse than another, which looks like a violation of equal protection. Even conservative justices may be inclined to go along because DOMA also overrides the longstanding power of the states over marital law. Two federal appeals courts have already found the law unconstitutional.

The second case involves California's Proposition 8, which overrode a state law allowing same-sex marriage. The court could simply find that gays have the right t to marry, but it's unlikely coming from a court dominated by Republican appointees. More plausible is that it will say once a right has been extended, it can't be taken away, which is what an appeals court said.

This outcome would leave the more fundamental question for the future, which is probably where the justices would like to keep it for now. States would remain free to enact same-sex marriage, and the trend in that direction would doubtless proceed.

Constitutional experts will be debating all these questions and more in the coming months. But just by taking these cases, the court has underlined how far we have come on the issue.