The U.S. Supreme Court takes up its second gay-marriage case in two days, one that gains new significance after the justices signaled reluctance to decide whether same-sex couples have a constitutional right to wed.
Justice Anthony Kennedy, the court’s likely swing vote, yesterday asked whether the court made a mistake in agreeing to review California’s ban on same-sex marriage. His misgivings, echoed by Justice Sonya Sotomayor, suggested that the court may take the unusual step of dismissing the marquee case of its term.
“There was a genuine concern about going too far, too fast,” said Charles Fried, a Harvard Law School professor who was President Ronald Reagan’s solicitor general. “I sensed a genuine regret that the court had this case before it now.”
Sidestepping the California case — billed as potentially the biggest civil rights dispute in decades — would leave today’s clash over the U.S. Defense of Marriage Act as the best hope for gay-rights advocates to lay the legal groundwork for a later ruling conferring same-sex marriage rights.
The 1996 law defines marriage as a heterosexual union, meaning that gay couples who are legally married under state law are considered unmarried under federal law. They can’t file joint federal tax returns, claim a spousal exemption from estate taxes or collect Social Security survivor’s benefits. The Obama administration opposes the law, while continuing to enforce it.
Kennedy, 76, suggested yesterday he may be unwilling to address California’s Proposition 8, the 2008 ballot initiative that halted gay marriage in the state after five months. He said an appeals court decision that struck down the measure might be too narrow to warrant a high court ruling on the sweeping questions involved.
“I just wonder if the case was properly granted” a high court review, Kennedy said during the 80-minute session yesterday in Washington.