Two big cases addressing marriage rights for gays and lesbians are on track to reach the U.S. Supreme Court as soon as this year, keeping the focus on an issue President Barack Obama reignited with his endorsement this week.
The cases, originating on opposite coasts, go to the heart of a question that has churned for two decades: whether states and the federal government may refuse to recognize same-sex marriage.
How the high court would rule is impossible to know. In the court’s most recent gay-rights case, the justices in 2003 struck down state anti-sodomy laws as an improper intrusion on private activity.
Lawyers for California same-sex couples are urging the U.S. Court of Appeals for the 9th Circuit to end its involvement, which would clear the way for a request for the Supreme Court to settle the issue.
Each day the government does not recognize the couples “is a day that can never be returned to them,” lawyer Ted Olson wrote in a court filing in March.
Obama got both sides of the marriage debate fired up on Wednesday when he said he believes gays and lesbians should be able to marry. The comments to ABC News completed the president’s self-described evolution on the subject and thrust the issue into his 2012 re-election campaign.
The California case tests whether the state’s same-sex marriage ban, which voters approved in 2008 after 18,000 same-sex couples had obtained marriage licenses, violates due-process and equal-protection rights.
After a three-judge panel ruled for gay marriage in the 9th Circuit in February, backers of the ban asked that an 11-judge panel rehear the case. Should the court refuse, the backers are expected to ask the U.S. Supreme Court to intervene.
Brian Brown, president of the National Organization for Marriage, a group that opposes same-sex marriage, struck a confident note in an interview. Lawyers for gays and lesbians, he said, need to prove that “our entire common law history going back to England was wrong.”
The second major case is from Massachusetts, where gays and lesbians can legally marry but are ineligible for the federal benefits of marriage.
Seventeen married or widowed men and women suing for benefits won a 2010 ruling that is now on appeal. A decision is likely in the next several months from the U.S. Court of Appeals for the 1st Circuit, with the high court a possible next step.
Other cases in earlier stages are challenging laws that restrict same-sex relationships. A New York widow is suing over the tax treatment of her late wife’s estate. The two were married in Canada in 2007.
Mary Bonauto, a lawyer for the Massachusetts plaintiffs, said it was hard to gauge how Obama’s support for same-sex marriage might affect legal proceedings. “When you have the conversation, then you have the opportunity to change discriminatory laws,” said Bonauto, director of the civil rights project for the legal group GLAD.
By David Ingram
WASHINGTON (Reuters) – (Reporting by David Ingram; Editing by Howard Goller and Eric Walsh)