About two decades after the campaign to win the right to marry for same-sex couples began, the Supreme Court on Friday afternoon agreed to consider — but not necessarily to decide — some of the most important constitutional issues at the heart of that national controversy. Each side gained the opportunity to make sweeping arguments, for or against such marriages. But the Court left itself the option, at least during the current Term, of avoiding real answers.
The rather wordy pair of orders the Justices issued at 3:13 p.m. Friday accepted for review core questions on the power of states and of Congress to pass laws that either forbid, or discourage, same-sex marriage, when such laws are passed either to express disapproval of homosexuality or to try to protect the traditional view that marriage should be open only to a man and a woman. But, on both of the granted cases, the Court told the lawyers to be prepared to argue points that could keep the Court from reaching the constitutional questions.
The Court had ten petitions on the constitutional issue (a pending eleventh one is not ready for the Justices to react), and they picked only two. One is on the constitionality of California’s “Proposition 8,” a ballot measure approved by the state’s voters in 2008 to take away a marital right that the state Supreme Court had given to same-sex couples — a case taken to the Court by the proponents of that measure (Hollingsworth, et al., v. Perry, et al., docket 12-144). The other is on the constitutionality of a part of the 1996 federal Defense of Marriage Act, providing that the word “marriage” in any federal law or regulation — including hundreds that provide benefits — means only a union of a man and a woman (United States v. Windsor, et al., 12-307). That case was taken to the Court by the Obama Administration’s Justice Department.
