Supreme Court considers gay marriage in wake of ballot box breakthroughs

Laura E. Davis
People line up for early voting in Silver Spring, Md., Oct. 27, 2012. (Gary Cameron/Reuters)
People line up for early voting in Silver Spring, Md., Oct. 27, 2012. (Gary Cameron/Reuters)

When the U.S. Supreme Court met on Friday to consider whether to wade into the issue of gay marriage, the justices faced a reality not even a month old: For the first time, voters have chosen to legalize same-sex nuptials.

The shift that took place on Election Day has energized proponents of gay marriage, who believe the expressions of support for their cause in four states will influence the Supreme Court's decision-making.

At a private conference on Friday, the justices considered whether to hear several cases dealing with the rights of gay couples who are married, want to get married or are in domestic partnerships. As of Friday afternoon, they had not indicated which, if any, of the cases they might accept.

On Nov. 6, voters approved ballot measures that legalized gay marriage in Maine, Maryland and Washington state, and defeated a ballot measure in Minnesota that would have added an amendment to the state's Constitution banning same-sex nuptials. It was a remarkable breakthrough for gay rights, because until this year voters had rejected same-sex marriage in 32 states that held popular votes on the issue.

Advocates say such electoral victories are unlikely to be repeated anytime soon. The action will instead revert to legislative chambers and the courts, where all gay marriage victories were achieved before Election Day 2012.

"It's almost hard to find the right adjective to describe the monumental victory we had winning all four states," said Michael Cole-Schwartz, director of communication for the Human Rights Campaign, a gay rights group. "Marriage equality nationwide is not a question of if but when. It's up to us to accelerate our efforts."

Activists are looking to state legislatures in Colorado, Delaware, Hawaii, Illinois, Minnesota, New Jersey and Rhode Island as the next places where the legalization of gay marriage or civil unions will be debated.

Right now, Oregon stands the best chance of being the next state to legalize gay marriage by popular vote, advocates say.

Jeana Frazzini, executive director of Basic Rights Oregon, said her group is aiming to make a decision early next year about whether to push for a ballot initiative in 2014 that would overturn the state's constitutional amendment banning same-sex marriage, which passed in 2004.

"It's still very, very difficult to win a ballot measure," Evan Wolfson, founder and president of Freedom to Marry, said.

But Wolfson pointed to three factors that helped gay marriage go 4-0 on Election Day this year after so many previous losses: more "engagement" with voters; the increased visibility of gay marriage in the years since it has been legal in a handful of states; and better campaigns around the ballot measures.

President Barack Obama also influenced the debate, advocates say. In May, Obama announced his support for gay marriage the day after voters in North Carolina overwhelmingly passed a constitutional amendment banning such nuptials.

Still, opponents of same-sex nuptials don't see the string of victories as evidence of the inevitable.

Frank Schubert of the National Organization for Marriage said his group and others that promote traditional marriage were outspent in the battles this year. He also noted that the four states that expressed support for gay marriage this year were all traditionally Democratic and supported Obama in the presidential contest.

Schubert called the results "very disappointing" but said, "I don't think it signals a change in the mood of the country as a whole."

Schubert's group does expect to be on the defensive "in the very short term" fighting state legislatures' attempts to legalize gay marriage, he said. But his group and others hope to play offense again in two years—in Indiana, where the legislature already has taken steps to put a state constitutional amendment on the ballot that would ban same-sex nuptials.

Schubert suggested the Supreme Court will have an impact on what happens in 2014 when it comes to one of the cases considered on Friday: whether Proposition 8, California's 2008 voter-enacted ban on gay marriage,  violates the U.S. Constitution.

The case was brought on behalf of two gay California couples who want to get married but can't because of the ban. The case originally had the potential to establish a right to same-sex marriage nationwide, but as it's framed now after a trip through the 9th U.S. Circuit Court of Appeals, it applies only to California.

If the high court decides to accept the case and ultimately upholds Proposition 8, Schubert said he thinks there will be another ballot battle over gay marriage in California in 2014, with supporters trying to make gay marriage legal.

The justices could also decline to hear the case, which would make gay marriage legal by default in California because of the 9th Circuit's ruling. Or they could decide to hear the case and strike down Proposition 8.

Also before the justices on Friday were cases relating to the Defense of Marriage Act, the federal law that bars the U.S. government from recognizing same-sex marriage. Another deals with an Arizona law that denies benefits to state employees' domestic partners.

Many court watchers think it's likely the justices will accept one or more of the DOMA cases. Arguments would be held in the first half of 2013, and a ruling would be issued by June. If the court strikes down DOMA, it would give more rights to gay couples who are already married in states where it's legal, but it wouldn't expand gay marriage to more states.

Despite all the potential action at the high court, Wolfson of Freedom to Marry says gay rights advocates' state-by-state strategy—of continuing to foster a groundswell of support through "persuasion and conversations"— doesn't change.

"If they do take one of those cases, then it even adds to the urgency of winning more states and growing the majority as much as we can while the court ponders," he said.

UPDATE, 3:30 p.m. ET: This post was updated to reflect the news that the Supreme Court opted not to act on the gay marriage cases on Friday.