The rights and federal government benefits of approximately nine million Americans hung in the balance this week as the Supreme Court of the U.S. heard arguments for and against two landmark gay marriage cases, the Defence of Marriage Act (DOMA) and Proposition 8.
With the area surrounding the highest court in the land under a peaceful siege by hundreds of demonstrators on both sides of the laws, the complex question of federal and state recognition of equal marriage rights for same-sex couples was debated with as much passion outside the downtown Washington venue as it probably was within the Supreme Court.
Inside the Chief Justices of the court took up both DOMA, which former President Bill Clinton signed into law in 1996 – when public support for gay rights was at a relatively lower level – and the California-based Proposition 8, a state-level ballot-box ban on recognising gay marriage that was struck down by a federal judge in San Francisco in 2009.
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While a verdict is not expected in either case until June, reports suggested that until the democratic process played out in many more U.S. states and each state made a decision on gay marriage and rights, the Supreme Court would be more likely to avoid sweeping decisions on the subject.
At the moment only nine states, including California, and the District of Columbia recognise civil unions or domestic partnerships among same-sex couples, although the legalisation of gay marriage is clearly gaining momentum in some areas. Three states – Maryland, Maine and Washington – passed legislation in support of gay marriage last year alone.
However, fierce resistance to official recognition of gay marriage still exists among conservatives across the nation and a total of 30 states have constitutional amendments that ban gay marriage.
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Gay and lesbian couples residing in any of these states do not enjoy equal rights as heterosexual couples in everything from protection from discrimination in housing, child support, adoption rights and even tax laws.
Legal experts noted that there could be four potential verdicts in the case. First, the court could uphold Proposition 8 and argue that gay marriage is not a constitutional right, and this would effectively leave each state to decide on the issue for itself.
Second, the justices may dismiss the appeal against California’s ban on procedural grounds – that individuals rather than the state itself took up Proposition 8’s support – and return the case to the federal court in San Francisco. In this scenario gay marriage would become legal in the state.
Third, the court may strike down Proposition 8 as unconstitutional, but to do so on a narrow basis – for example by disputing the right of a ballot-based initiative to take away rights won by gay marriage supporters in a court of law. Finally, and perhaps least likely, the court may argue that that it is unconstitutional to deny gay couples the rights of marriage and in this case a gay marriage would be legalised across the nation.