WASHINGTON — The Supreme Court announced Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.
One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.
The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.
The court’s move comes against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. After last month’s elections, the number of states authorizing same-sex marriage increased by half, to nine.
The court’s docket is now crowded with cases about the meaning of equality, with the new cases joining ones on affirmative action in higher education and the future of the Voting Rights Act of 1965. Decisions in all of those cases are expected by June.
The new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election.
The suit argued that California’s voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.
A federal judge in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.
A divided three-judge panel of the 9th U.S. Circuit Court of Appeals, also in San Francisco, affirmed the decision. But the majority relied on narrower grounds that seemed calculated to avoid Supreme Court review or, at least, attract the vote of the court’s presumed swing member, Justice Anthony Kennedy.
Judge Stephen Reinhardt, writing for the majority, relied heavily on a 1996 majority opinion from Kennedy in a case which struck down a Colorado constitutional amendment that had banned the passage of laws protecting gay men and lesbians. The voter initiative in California, known as Proposition 8, had done something similar, Reinhardt wrote.
That reasoning, he added, meant that the ruling was confined to California.
“We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts," he wrote.
“For now," he said, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class."
The Supreme Court has several options in reviewing the decision. It could reverse it, leaving California’s ban on same-sex marriage in place. It could affirm on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.
A plaintiff in the case, Kristin Perry, said she hoped the justices would answer yes to that last question. “There is nothing more important," she said, “than a state ridding itself of discriminatory laws that hurt its citizens every day."
Brian Brown, president of the National Organization for Marriage, said the court should address the broader question but say no. “What’s at stake," he said, “is whether the Constitution demands a redefinition of marriage and whether states can even vote on this issue."
The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)
The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who were married in 2007 in Canada. Spyer died in 2009, and Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Windsor as a surviving spouse, and she faced a tax bill of some $360,000 that a spouse in an opposite-sex marriage would not have had to pay.
Windsor sued, and in October the federal appeals court in New York struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston. The Windsor case made its way the Supreme Court unusually quickly because the parties had filed an appeal from the trial court’s decision in the case, also striking down the law, even before the appeals court had ruled.
Windsor, 83, said she was “absolutely thrilled" that the court had agreed to hear her case, adding, “I wish Thea was here to see what is going on."
There was reason to think that Justice Elena Kagan was not free to hear an appeal from the Boston case because she had worked on it or a related case as U.S. solicitor general. The current solicitor general, Donald Verrilli Jr., provided the court with a number of other options, including Windsor, probably partly to make sure a case of such importance could be heard by a full nine-member court.
The Obama administration’s attitude toward same-sex marriage and the 1996 law has shifted over time. Until last year, the Justice Department defended the law in court, as it typically does all acts of Congress.
In February 2011, though, Attorney General Eric Holder announced that he and President Barack Obama had concluded that the law was unconstitutional and unworthy of defense in court, though he added that the administration would continue to enforce the law.
In May of this year, Obama announced his support for same-sex marriage.
After the Justice Department stepped aside, House Republicans intervened to defend the law. They are represented by Paul Clement, a former solicitor general in the Bush administration.
The Windsor case is thus likely to feature a rematch between Clement and Verrilli, who were antagonists this year in the arguments over Obama’s health care law. The two cases are likely to be argued in late March, about a year after the health care case was heard.