Skip to main content

Marriage and the Supreme Court: Five things to watch

By Matt Smith, CNN
updated 5:35 AM EDT, Mon March 25, 2013

(CNN) -- After years of struggle on both sides of the issue, the question of same-sex marriage goes before the U.S. Supreme Court this week. People were already lining up outside the court Friday morning for the limited number of seats available Tuesday and Wednesday, when the justices will hear oral arguments on two cases.

For those of you who won't be in the courtroom, here's a look at what to expect.

As Joe Biden might say, it's a big family deal

GOP shift on same-sex marriage
No straight weddings allowed
DOMA's effect on same-sex couples
Same-sex marriage push in New Jersey

These are no ordinary laws before the Supreme Court: They represent battles over a generations-old concept of marriage and the rights of an increasing number of families in legally recognized gay and lesbian relationships.

There are an estimated 120,000 legally married same-sex couples in the United States. Nine states and the District of Columbia now allow same-sex couples to marry, and a dozen others recognize "civil unions" or "domestic partnerships" that grant some of the same benefits without full marriage rights.

But 29 states have added bans on same-sex marriage to their constitutions, including California, the most populous state. Supporters of the same-sex marriage ban in California argue that it's not just tradition but also biology: "The two sexes are different to the core, and each is necessary -- culturally and biologically -- for the optimal development of a human being," Rutgers University sociologist David Popenoe has written.

Sutter: The county where no one's gay

How we got here

It starts back in 1993, when Hawaii's Supreme Court found that the state couldn't deny same-sex couples the right to marry without a "compelling reason" and sent the issue back to the state legislature. Hawaii lawmakers quickly passed a law banning gay marriage, and advocates of traditional marriage began mobilizing to fight the prospect of gays and lesbians being able to marry.

That led to the passage of the federal Defense of Marriage Act, the 1996 legislation that forbids the recognition of same-sex marriages nationwide and bars married gay and lesbian couples from receiving federal benefits.

But DOMA is becoming an orphan. Two federal appeals courts have already struck down its benefits provision; the Obama administration has refused to defend it; and former President Bill Clinton, who signed it, now calls it "incompatible with our Constitution." With the Justice Department now arguing against it, Republicans in the House of Representatives hired their own lawyers to defend the act.

The California ban, known as Proposition 8, passed by a 52-48% margin in 2008. It eliminated the right to marry that had been recognized by California courts earlier that year. Opponents of the measure challenged it in court and have succeeded in convincing federal judges at the district and appellate levels to find the ban unconstitutional.

The justices will hear oral arguments on Proposition 8 on Tuesday. On Wednesday, they will take up DOMA.

A civil right, or a political question

One the biggest issues facing the justices is whether they can -- or should -- issue a ruling that will effectively broaden the legal definition of marriage, long restricted to heterosexual couples. Backers of DOMA and Proposition 8 say it should be up to the public to make that decision, not the courts.

"Our most fundamental right in this country is the right to vote and the right to participate in the political process, " said Austin Nimocks of the Alliance Defending Freedom, a Christian advocacy group.

"We don't need the Supreme Court to take that right away from Americans of good faith on both sides of this issue and impose its judicial solution," Nimocks told CNN's State of the Union. "We need to leave this debate to the democratic process, which is working."

But California Attorney General Kamala Harris, who is arguing against Proposition 8, said voter-approved marriage bans "are simply unconstitutional." The Supreme Court has ruled more than a dozen times that marriage is a fundamental right, "and as it relates to a fundamental right, the court will hold that under the highest level of scrutiny."

"It is one thing to read the polls, which we have discussed, which show again that a majority of Americans are in favor of same-sex marriage," Harris said. "But it is more important to read the Constitution."

Opinion: Will gay rights infringe on religious liberty?

Who to watch

Same-sex marriage advocates will be watching Justice Anthony Kennedy during this week's arguments. The generally conservative Reagan appointee has authored two opinions that advanced gay rights during his tenure, striking down state laws criminalizing homosexual sodomy and striking down a Colorado constitutional amendment that forbade local gay-rights ordinances. In that 1996 case, Kennedy wrote for the court, a state can't decide that a class of people are "a stranger to its laws."

Conservative supporters of the bans have turned their eyes toward Justice Ruth Bader Ginsburg. The justice, a Clinton appointee, told a Columbia University forum in 2012 that the 1973 Roe v. Wade decision that struck down state bans on abortion short-circuited a political consensus on abortion rights.

Karl Rove, the onetime strategist for former President George W. Bush, told ABC's "This Week" on Sunday that Ginsburg may oppose a sweeping decision in support of same-sex marriage.

"What we may see is a decision here that in essence is not a 5-4 decision, but a 6-3, 7-2 that says 'leave it up to the states,' " said Rove, whose old boss once endorsed an amendment to the U.S. Constitution to ban same-sex marriages. "In fact, we could see an 8-1."

CNN legal analyst Jeffrey Toobin, the author of a lengthy Ginsburg profile for The New Yorker, said Ginsburg is likely to find the Defense of Marriage Act unconstitutional but isn't likely to knock down bans on same-sex marriage nationwide.

"She does not believe in grand pronouncements, even liberal grand pronouncements, from the Supreme Court," Toobin said.

A shifting landscape

The court is hearing arguments as a public shift toward same-sex marriage appears to be gathering speed. The proportion of Americans who support same-sex marriage has grown from around 40% in 2007 to 53% in a CNN/ORC International poll conducted last week; 44% remain opposed.

Barack Obama ran for president in 2008 as a supporter of civil unions but not same-sex marriage. In 2012, months before facing voters again, he said his thinking had shifted and that he supported marriage rights for gays and lesbians.

"I had hesitated on gay marriage, in part, because I thought civil unions would be sufficient," he said. "I was sensitive to the fact that -- for a lot of people -- that the word marriage is something that provokes very powerful traditions and religious beliefs."

Obama's Republican challenger, Mitt Romney, ran as a defender of traditional marriage, and the party's platform opposed same-sex marriages. But since November, numerous GOP figures have emerged as supporters of same-sex unions.

Dozens of high-profile Republicans -- including former party Chairman Ken Mehlman, ex-presidential hopeful Jon Huntsman and actor Clint Eastwood -- filed a friend-of-the-court brief arguing that Proposition 8 should be struck down. And earlier this month, Sen. Rob Portman of Ohio announced he is now a supporter of the freedom to marry after finding out that his son -- a Yale sophomore -- is gay.

"Eventually, as time marches on, this is a country that believes pretty squarely in marriage equality," former Bush spokeswoman Nicolle Wallace told "Fox News Sunday."

Opinion: The real 'modern family' in America

CNN Supreme Court Producer Bill Mears contributed to this report.

Part of complete coverage on
Same-sex marriage debate
updated 10:54 AM EDT, Fri March 28, 2014
The federal government will recognize gay marriages in Michigan that occurred between recent conflicting court rulings, Attorney General Eric Holder announced.
updated 8:37 AM EST, Thu February 27, 2014
A federal judge struck down Texas' same-sex marriage ban, thanks to a sweeping decision holding that its current prohibition has no "legitimate governmental purpose."
updated 5:46 PM EST, Thu February 27, 2014
Arizona's divisive SB1026 -- which supporters claim protected religious freedom, and critics say served as cover for businesses to discriminate against gays and lesbians -- didn't come from nowhere.
updated 12:24 AM EST, Fri February 14, 2014
A federal judge in Virginia has struck down the commonwealth's ban on same-sex marriage as unconstitutional, according to court documents.
updated 4:23 PM EST, Wed February 12, 2014
gay couple health insurance jeff jones and Nate Walker
A federal judge ruled that Kentucky's denial of recognition for same-sex marriages violates the U.S. Constitution's guarantee of equal protection under the law.
updated 2:46 PM EDT, Fri August 2, 2013
Legally married same-sex spouses seeking U.S. visas will now be treated the same as opposite-sex spouses, Secretary of State John Kerry announced.
updated 9:45 AM EDT, Thu August 1, 2013
They've been a couple for two years and are eager to raise two children together. But it wasn't until Thursday that Holli Bartelt and Amy Petrich were allowed to legally wed.
updated 8:26 AM EDT, Thu June 27, 2013
The Supreme Court has struck down a key part of congressional law that denies to legally married same-sex couples the same benefits provided to heterosexual spouses.
updated 8:27 AM EDT, Thu June 27, 2013
The ruling permits same-sex couples in California to legally marry.
updated 9:31 AM EDT, Thu June 27, 2013
More than 50 years ago, military brass sat down the couple who'd become Susan Green's parents.
updated 8:04 AM EDT, Thu June 27, 2013
Thousands of same-sex couples across the U.S. were thrilled by the rulings. But in 37 states, some same-sex couples weren't as happy as they'd hoped to be.
updated 3:31 PM EDT, Sat June 29, 2013
A Hollywood genius might have been hard-pressed to produce a more perfect ending to Melanie Servetas' story.
Find out which states match your values when it comes to lesbian, gay, bisexual and transgender rights.
updated 12:05 PM EDT, Tue April 15, 2014
Here's a look at what you need to know about same-sex marriage in the U.S. and worldwide.
updated 3:39 PM EDT, Thu August 29, 2013
Same-sex marriage is in the spotlight on the national legal and political stages. Read what's behind the two landmark cases.
Which states allow same-sex marriage, and which states don't?
updated 8:18 PM EDT, Tue June 25, 2013
11-year-old Kevin thought it would be neat if daddy and papa tied the knot on the same day the couple met 15-years earlier on a softball field.
updated 10:58 AM EST, Sat January 19, 2013
Gail Dosik walked into a party, hung up her coat and fell in love; 26 years later, she was finally able to make the beautiful stranger she met that night her legally wedded wife.
updated 4:21 PM EDT, Thu June 7, 2012
On her wedding day, Jessica Port wore a tan and black dress to match the tan button-down shirt and patterned necktie of her spouse-to-be, Virginia Anne Cowan.