As hundreds of same-sex couples took their long-awaited wedding vows in Washington state Sunday, the constitutional battle in Washington, D.C., over gay marriage was just getting started.
The Supreme Court’s decision late last week to take a federal and a California case that go to the heart of the legal questions over same-sex marriage had both sides trying to determine what it means for the legal battles ahead what the court did — and how it did it.
On Friday, the Supreme Court said it will review Windsor v. United States, which involves the 1996 federal Defense of Marriage Act (DOMA), and Hollingsworth v. Perry, which involves a challenge to Proposition 8, the California voter-passed measure that effectively ended gay marriage in that state in 2008.
Both the federal law and Proposition 8 hold that only marriages between one man and one woman have legal recognition. Four of the nine justices had to agree for a case to be heard.
Gay rights activists expressed cautious confidence that they can win both cases.
“This is it — the Supreme Court marriage moment that the ACLU has been working towards for years,” said James Esseks, litigation director of the American Civil Liberties Union Lesbian, Gay, Bisexual, Transgender & AIDS Project, said. “These cases are poised not just to take down DOMA and Prop 8, but to be the next building blocks for LGBT equality more broadly.”
But traditional-values groups are also heartened that the marriage issue will finally be heard, noting that gay marriages are still not recognized in more than 80 percent of the states.
Taking the case sends “a strong signal that the justices are concerned with the rogue rulings that have come out of San Francisco, at both the trial court and appellate levels,” said law scholar John Eastman, chairman of the National Organization for Marriage, which opposes gay marriage. “Had the Supreme Court agreed with” the rulings, it could have simply declined to accept the cases and let the decisions stand, he added.
Supreme Court oral arguments are expected to be held in late winter or early spring, with decisions issued by summer.
The high court proceedings are likely to take on new urgency given the activity in states such as Washington, where voters last month rejected an initiative to overturn the state’s gay marriage law. Last Wednesday, Washington Democratic Gov. Christine Gregoire and Secretary of State Sam Reed certified the election results, permitting the law to go into effect at 12:01 a.m. Thursday. There was a three-day waiting period before weddings could take place.
“We’re totally thrilled,” said Keith Bacon, who took vows with Corianton Hale, his partner of six years, on Sunday. “We had looked at this as maybe a day we would sign a piece of paper and seal the deal, and instead we’re having this huge party being thrown in our honor. It’s just mind-blowing.”
Same-sex couples will also be able to marry in Maine on Dec. 29, and in Maryland on Jan. 1. Voters recently failed to block gay marriage in those states as well.
But the bigger news of the week may have been that the legal saga of gay marriage has finally reached the nation’s highest court.
The federal case was brought by the ACLU and other lawyers on behalf of Edith Windsor, a New York woman who married her longtime companion, Thea Spyer, in Canada in 2007. When Ms. Spyer died a few years later, their marriage was not recognized by the federal government because of DOMA, and Ms. Windsor, now 83, was forced to pay nearly $370,000 in federal estate taxes.
The Proposition 8 case asks whether the U.S. Constitution prohibits the people of California from defining marriage as the union of one man and one woman in their state.
The American Foundation for Equal Rights (AFER) sued to overturn Proposition 8 on behalf of two same-sex couples.
“This case is about the fundamental constitutional right of all Americans to marry the person they love,” said Theodore B. Olson, AFER’s lead co-counsel with David Boies. The Supreme Court’s decision to grant review in this case “illustrates the national significance of marriage equality, and brings us closer to the day when every American will be able to equally enjoy the fundamental freedom to marry.”
Andy Pugno, general counsel for ProtectMarriage.com, the organization that put Proposition 8 on the ballot, said: “Arguing this case before the Supreme Court finally gives us a chance at a fair hearing, something that hasn’t been afforded to the people since we began this fight.”
• This story is based in part on wire service reports.
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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