Under the U.S. Supreme Court: Justices will decide the fate of gay marriage

WASHINGTON, May 20 (UPI) -- The president proposes, but the Supreme Court disposes: The apparent consensus in the legal writing community is that the issue of gay marriage will be fought out eventually on the battleground of the U.S. Supreme Court, and the justices will have the final say.

President Obama famously and finally came out May 9 for gay marriage. But beyond declaring his personal opinion, the president actually endorsed the status quo -- it's up to the individual states to allow or ban marriage between two people of the same gender.

The states have been busy doing just that. Thirty-eight have banned same-sex marriage; six states and the District of Columbia allow it.

Most reporting of Obama's interview with ABC News stressed the president's evolutionary journey to accepting gay marriage.

"What the president said is far more nuanced than most of the popular media treatment suggested," Lyle Denniston reported on SCOTUSBLOG. "He said, for example, that this was a matter of law, and he indicated he meant state law. He said that the issue had to be viewed 'from the perspective of the law and perspective of the state.'"

Obama "also said that he had not wanted 'to nationalize this issue,'" Denniston said.

The president was fairly specific about what he thought was the proper venue for the gay marriage battle.

"What you're seeing is, I think, states working through this issue," Obama told ABC, "in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that's a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what's recognized as a marriage."

When asked about North Carolina, where voters had just voted overwhelmingly to ban gay marriage, Obama responded: "What I'm saying is that different states are coming to different conclusions. But this debate is taking place at a local level. And I think the whole country is evolving and changing. And, you know, one of the things that I'd like to see is that a conversation continue in a respectful way."

The president also stressed his administration has stopped supporting the Defense of Marriage Act in legal challenges.

DOMA tries to negate the "full faith and credit" guarantee in the Constitution, which requires a state to honor the effect of laws in the other states. DOMA says that no state has to "give effect" to same-sex marriages in other states.

The act also says marriage is limited to a union of "a person of the opposite sex who is a husband or wife."

But challenges to DOMA and to California's Proposition 8, a voter initiative that bans gay marriage, are percolating their way through the courts.

Whether the president can sustain this detached stance on gay marriage is not clear.

"President Barack Obama last week cast his support for same-sex marriage as a personal view on policy, not a constitutional imperative," Jess Bravin wrote in the Wall Street Journal. "But because the Supreme Court long has defined the right to marriage as a 'fundamental freedom,' legal analysts say his administration is sure to face pressure to weigh in on the marriage question when it reaches the Supreme Court."

Bravin said the pressure on the administration could increase as early as the next Supreme Court term, if the challenge to Prop 8 "reaches the final stages."

Theodore Olson, the former Bush administration solicitor general who led the challenge to Prop 8 in the lower courts, told the Journal if the issue reaches the Supreme Court, the president "will surely be asked by advocates for [lesbian, gay, bisexual and transgender] rights to support a decision upholding a federal constitutional right to same-sex marriage, which would take it out of the hands of the states."

Republican Olson and prominent attorney David Boies -- on opposite sides as main attorneys in 2000's Bush vs. Gore at the Supreme Court -- are working to overturn Proposition 8.

The Journal said the Prop 8 and DOMA challenges "are the two major gay-marriage issues working their way through federal courts."

Most analyses presume the issue will be heard in the Supreme Court as a matter of course. But an analysis in the Los Angeles Times last week warns if the justices recognize gay marriage as a right, "the probable backlash would be substantial and might well do more damage than good to the future of gay rights and other important causes."

The analysis points out that after 1954's Brown vs. Board of Education, states resisted integration for years and it was only after the 1964 Civil Rights Act and the threat to withhold federal funding that white-dominated schools finally opened their doors to black children.

The ruling in 1973's Roe vs. Wade recognized a woman's right to an abortion, but it also gave birth to the "family values" movement and empowered the Revs. Jerry Falwell and Pat Robertson.

If the Supreme Court accepts either challenge, the justices are likely to ask the U.S. Solicitor General's Office for a brief expressing the government's opinion -- putting Obama in a position he's been trying to avoid, advocating a national policy.

What the justices would do if they hear either challenge is still a matter of speculation. Of course, the justices could simply adopt the president's attitude, and say the issue of gay marriage is up to the states.

But most analysts point to the Supreme Court 6-3 decision in 2003's Texas vs. Lawrence as a high court weather vane. That decision struck down the Lone Star State's ban on homosexual conduct. In that landmark opinion, Justice Anthony Kennedy, who often helps form the majority on the modern court, emphatically told government to get out of the people's bedrooms.

Of equal importance, however, is the Supreme Court 6-3 decision in 1996 that struck down a voter-enacted Colorado amendment -- "Amendment 2" -- that said communities and counties could not take any action that would include gays and lesbians as a class protected from discrimination.

Kennedy wrote that majority opinion too. He cited the Constitution's guarantee of equal protection under the law.

"The primary rationale the state offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality," Kennedy wrote. "Colorado also cites its interest in conserving resources to fight discrimination against other groups.

"The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them," Kennedy said. "We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the equal protection clause does not permit.

Kennedy said the majority "must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws."

The moderate conservative Kennedy, of course, is a key swing vote on the high court, pulled one way by the four-member conservative bloc and the other by the four-member liberal bloc.

Whether his words in the Romer vs. Evans opinion will be echoed in any final decision on gay marriage, time will tell.