The U.S. Supreme Court will hear arguments in two same sex marriage cases this week.
First up on Tuesday is Hollingsworth v. Perry, the challenge to California's Proposition 8.
In May 2008, the California Supreme Court approved same sex marriage. Thousands of people got married under the law. Then in November 2008, voters approved Prop 8 to ban same sex marriage.
"When we have big social changes that come on down from the Supreme Court instead bubbling through the states, we sometimes have a backlash."Emily Bazelon
Supporters of same-sex marriage challenged the ban. Two lower courts agreed with gay marriage supporters and overturned ban, but the final ruling was narrow and limited to California.
Now the case is up before the nation's highest court.
The key issue is: Does California's voter-approved ban on gay marriage - after the state's highest court had ruled for gay marriage - violate the U.S. Constitution?
Opponents of gay marriage may also be on the spot to prove that same-sex marriage would harm heterosexual couples.
Gay marriage opponents lost the case in a lower court when a judge asked the lawyer how allowing gay marriage would harm opposite-sex couples. He replied, "Your honor, my answer is: I don't know. I don't know."
Court watcher Emily Bazelon told Here & Now's Robin Young that the U.S. Supreme Court has three options in this case:
- A narrow ruling applicable only to California
- A middle option, affecting only nine states
- A wide ruling that applies to all 50 states
"I think the California-only ruling is the most plausible. It has the best legal support, and is probably the wisest choice in that it wouldn't force all of the the 41 states that have not found themselves ready for gay marriage to take that step," Bazelon said. "I am a supporter of gay marriage and so I also think there is a very strong argument that these [gay marriage] bans are unconstitutional nationwide, but I wonder about making that huge step through the courts. When we have big social changes that come on down from the Supreme Court instead bubbling through the states, we sometimes have a backlash."
Then on Wednesday the Supreme Court takes up Windsor v. United States.
Edith Windsor is arguing that her marriage to Thea Spyer was legal in New York state, but after Spyer died, Windsor had to pay federal estate taxes on the inheritance she received because the federal Defense of Marriage Act (DOMA) defines marriage as a union between a man and a woman.
Under that definition, Windsor has no spousal rights under federal law, so she's paying taxes she would not have to pay if she'd been married to a man.
While this case involves DOMA, it is challenging only one part of the law, Section 3, which prohibits the federal government from giving spousal rights to gay couples.
And it essentially turns on States rights, with Windsor making the argument that her marriage was legal in New York state, and federal law should not trump state law when it comes to things like marriage, divorce and family issues.
Opponents of gay marriage say that supporters are making contradictory arguments in the two cases: In the New York case, gay marriage supporters argue state law should hold when it comes to marriage, while in California they make the argument that a law approved by California voters violates the U.S. Constitution.
Recent pieces by Emily Bazelon:
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- Emily Bazelon, senior editor at Slate and author of the new book, "Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy."
This segment aired on March 25, 2013.