The Supreme Court and the future of marriage
McCain, Obama oppose gay marriages, but how to ban them is the issue
WASHINGTON - With four months to go until the election, msnbc.com is presenting a weekly series, Briefing Book: Issues '08 which will assess issues and controversies that the next president must confront once he takes the oath of office.
This week, we look at the courts and marriage. Can same-sex couples marry? Is such a right is guaranteed by state constitutions and by the United States Constitution?
As these controversies make their way to the Supreme Court, will the next president have the opportunity to appoint justices who'll address these questions?
Why it’s a problem
For same-sex couples, the California Supreme Court’s May 15 ruling on marriage is an historic victory.
The state’s highest court ruled that the California’s constitution protects the right of same-sex couples to marry.
In doing so, the court overruled the state’s voters. In 2000, 61 percent of California voters approved a ballot measure that said “only marriage between a man and a woman is valid and recognized in California.”
But the ruling poses a thorny election-year problem for both Republican John McCain and Democrat Barack Obama.
Both men have said that they oppose granting legal recognition to same-sex marriages.
But neither candidate wants to alienate voters who support marriage rights for same-sex couples. And gay and lesbian campaign donors can be a powerful force, particularly in the Democratic Party.
McCain cannot afford to forfeit the support of conservatives in his party who abhor gay marriage and who believe the California ruling is an example of judges imposing social policy changes on the electorate.
Apart from California, same-sex marriage is recognized only in Massachusetts, where the state’s highest court ruled in 2004 that the state’s constitution implied protection for marriages between two people of the same sex.
Forty-five states have laws prohibiting same-sex marriages, including 26 states with constitutional amendments that define marriage in the traditional terms: one man and one woman.
The California Supreme Court ruling may pose a problem for the 45 states that do not recognize same-sex marriages — if the United States Supreme Court eventually overturns the 1996 federal law called the Defense of Marriage Act (DOMA).
That law, signed by President Clinton, says that no state shall be required to recognize any same-sex marriage performed in another state.
But if marriage to another person of the same sex is a fundamental right protected by the United States Constitution, then DOMA would be unconstitutional and same-sex marriages would be constitutionally protected in every state.
In that case, California same-sex couples would be able to move to any of the 45 states that don’t recognize same-sex marriages and those states would be compelled to grant recognition to their marriages.
The U.S. Supreme Court’s Lawrence v. Texas ruling in 2003, which struck down state sodomy laws, seemed to indicate that the court might someday rule that there is a constitutional right of gays and lesbians to marry.
The question of marriage itself was not before the court in the 2003 case, but the majority opinion, written by Justice Anthony Kennedy, said, “Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."
The Constitution, Kennedy added, demands respect “for the autonomy of the person in making these choices.” Then he added, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
Does the “autonomy” of which Kennedy spoke include the right to marry?
The court has not yet said. And that’s another reason why the future membership of the court and the justices appointed by either President McCain or President Obama will be so very important.
Where the candidates stand
Both McCain and Obama have said they believe the states should decide their marriage policies. Both men have said they support civil unions, rather than full-fledged legal marriages between same-sex couples.
But McCain has been contradictory on civil unions, at times saying that he supports them, at other times saying he does not. "I do believe that people ought to be able to enter into contracts, exchange powers of attorney, other ways that people have relationships can enter into," he said in 2006.
On the day the California Supreme Court announced its ruling, Obama’s campaign issued a statement saying, “Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as President. He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage.”
A proposed amendment to the state constitution will be on the ballot in California on Nov. 4 that will say, “Only marriage between a man and a woman is valid or recognized in California.” If this is approved on Election Day, the state’s voters would overturn the state Supreme Court’s marriage decision.
McCain favors the proposed amendment to the California constitution.
“I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman, just as we did in my home state of Arizona," he said.
President may grapple with same-sex marriage
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Originally Posted by Trunks
