The Supreme Court and the future of marriage

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - This election cycle, msnbc.com is presenting a series, Briefing Book: Issues '08 which will assess controversies that the next president must confront once he takes the oath of office.

In this story, we look at the courts and marriage. Can same-sex couples marry? Is such a right is guaranteed by state constitutions and by the United States Constitution?

As these controversies make their way to the U.S. Supreme Court, will the next president have the opportunity to appoint justices who'll address these questions?

Why it’s a problem
For same-sex couples, the rulings by the California Supreme Court on May 15 and the Connecticut Supreme Court on Oct. 10 were historic victories. Those courts ruled that their states' constitutions protect the right of same-sex couples to marry.

On Election Day, Californians go to the polls to decide a gay-marriage ballot question, the second time in eight years that the issue has been put to the voters in the nation's most populous state.

In 2000, California voters approved a ballot measure that said “only marriage between a man and a woman is valid and recognized in California.”

In March 2000, 61 percent of California voters passed Proposition 22, which specified in state law that only marriage between a man and a woman was valid in California.

But last May, the California Supreme Court overruled the statute enacted by Proposition 22. The judges said laws that limit marriage to one man and one woman violate the equal protection clause of the state Constitution.

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What is on the California ballot on Election Day is a proposed amendment to the state constitution. It says what the 2000 ballot measure said — that only marriage between a man and a woman is valid. If voters approve it, it would essentially overturn the California Supreme Court ruling.

Both Republican John McCain and Democrat Barack Obama have said that they oppose granting legal recognition to same-sex marriages.

But neither candidate wants to alienate voters who support marriage rights for same-sex couples. And gay and lesbian campaign donors can be a powerful force, particularly in the Democratic Party.

McCain can't afford to forfeit the support of conservatives in his party who abhor gay marriage and who believe the California and Connecticut rulings are examples of judges imposing social policy changes on the electorate.

Apart from Connecticut and California, same-sex marriage is recognized only in Massachusetts, where the state’s highest court ruled in 2004 that the state’s constitution implied protection for marriages between two people of the same sex.

Forty-five states have laws prohibiting same-sex marriages, including 26 states with constitutional amendments that define marriage in the traditional terms: one man and one woman.

This year's California and Connecticut rulings may pose a problem for the 45 states that do not recognize same-sex marriages — if the United States Supreme Court overturns the 1996 federal law called the Defense of Marriage Act (DOMA).

That law, signed by President Clinton, says that no state shall be required to recognize any same-sex marriage performed in another state.

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But if marriage to another person of the same sex is a fundamental right protected by the United States Constitution, then DOMA would be unconstitutional and same-sex marriages would be constitutionally protected in every state.

In that case, same-sex couples from California, Connecticut and Massachusetts could move to any of the 45 states that don’t recognize same-sex marriages and those states would be compelled to grant recognition to their marriages.

The U.S. Supreme Court’s Lawrence v. Texas ruling in 2003, which struck down state sodomy laws, seemed to indicate that the court might someday rule that there is a constitutional right of gays and lesbians to marry.

The question of marriage itself was not before the court in the 2003 case, but the majority opinion, written by Justice Anthony Kennedy, said, “Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."

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The Constitution, Kennedy added, demands respect “for the autonomy of the person in making these choices.” Then he added, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

Does the “autonomy” of which Kennedy spoke include the right to marry?

The court has not yet said.

And that’s another reason why the Supreme Court justices appointed by either President McCain or President Obama will be so important.

Reacting to the Connecticut ruling, conservative leader Tony Perkins, head of the Family Research Council, said, "It is imperative both presidential candidates address the problems created by four activist judges in Connecticut."

He urged McCain and Obama "to explain what they would do as president" to ensure "that judges they appoint follow the law of the land and not legislate from the bench."

Where the candidates stand
Both McCain and Obama have said they believe the states should decide their marriage policies. Both men have said they support civil unions, rather than full-fledged legal marriages between same-sex couples.

But McCain has been contradictory on civil unions, at times saying that he supports them, at other times saying he does not. "I do believe that people ought to be able to enter into contracts, exchange powers of attorney, other ways that people have relationships can enter into," he said in 2006.

On the day the California Supreme Court announced its ruling, Obama’s campaign issued a statement saying, “Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as President. He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage.”

McCain favors the proposed amendment to the California constitution.

“I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman, just as we did in my home state of Arizona," he said.

Obama is against the proposed California state constitutional amendment. “I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states,'' he said. 

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