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Gays' political victories may influence court

Published: Thursday, Mar. 28, 2013 - 12:00 am | Page 10A
Last Modified: Thursday, Aug. 22, 2013 - 4:04 pm

WASHINGTON – As the Supreme Court justices struggled with the question of same-sex marriage this week, politicians in Congress kept handing down their own verdict. One after another, a series of lawmakers in recent days endorsed allowing gay men and lesbians to wed.

But momentum in the political world for gay rights could actually limit momentum in the legal world.

Although the court might throw out a federal law defining marriage as the union of a man and a woman, the justices signaled over two days of arguments that they might not feel compelled to intervene further, since the democratic process seems to be playing out on its own, state by state, elected official by elected official.

The prospect that gay rights advocates might become a victim of their own political success was underscored during arguments Wednesday over the constitutionality of the Defense of Marriage Act.

Opponents of the law were left to make the paradoxical argument that the nation has come to accept that gay men and lesbians deserve the same right to marriage as heterosexuals while maintaining that they are a politically oppressed class deserving the protection of the courts.

Chief Justice John Roberts Jr. pressed that point with the lawyer for the plaintiff, a New York woman suing to recover federal estate taxes she would not have had to pay had her spouse been a man.

"You don't doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?" he asked the lawyer.

For purposes of the law, said the lawyer, Roberta Kaplan, "I would, your honor."

"Really?" the chief justice asked skeptically. "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

Indeed, even as the justices heard the case, Sen. Kay Hagan of North Carolina on Wednesday became the latest red-state Democrat to announce her support for same-sex marriage. She followed Sens. Claire McCaskill of Missouri, Jay Rockefeller of West Virginia, Jon Tester of Montana and Mark Warner of Virginia.

Sen. Rob Portman of Ohio became the first Senate Republican to endorse marriage between same-sex couples. And former President Bill Clinton, who signed the Defense of Marriage Act in 1996, urged the justices to overturn it.

Kaplan, who moments earlier had been arguing that "there has been a sea change" in the United States in "the understanding of gay people and their relationships," pivoted to argue that despite that sea change, gay men and lesbians are still subject to bias.

"No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have," she said.

Even so, the rapidly changing political environment gives the justices a reason – should they want one – to sidestep imposing a national standard and leave the matter to the states.

On the defensive, at least politically, opponents of same-sex marriage were left to ask the justices to leave it up to the political arena.

"We would submit to you that that question is properly decided by the people themselves," Charles Cooper, a lawyer representing Proposition 8 supporters, said Tuesday.

Justice Anthony Kennedy, widely considered the decisive vote, has historically has been sensitive to the authority of states to set their own policies. During the closely watched arguments, he questioned the constitutionality of the Defense of Marriage Act but expressed skepticism that the court should issue a broad ruling in the separate California case heard Tuesday that would be the vehicle for finding a national right to same-sex marriage.

While framing its decisions on law and principle, the court has always been attuned to public opinion and periodically debates how much evolving national mores ought to influence the interpretation of a two-century-old Constitution.

In the case of same-sex marriage, the political currents have shifted so quickly that the justices seem wary of jumping into the rapids. Polls show that in the 16 years since the Defense of Marriage Act was enacted, strong public opposition to same-sex marriage has reversed into majority support.

No states allowed same-sex marriage in 1996; now nine do, plus the District of Columbia.

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