Gay-marriage cases to define Supreme Court legacy

Fri Mar 22, 2013 10:14am EDT
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By Joan Biskupic

WASHINGTON (Reuters) - When the Supreme Court considers the constitutionality of marriage for gay men and lesbians in the coming week, the justices will be taking a major step toward defining their own legacy.

In their first-ever review of same-sex marriage laws, the nine justices on the country's highest court are hearing arguments on Tuesday and Wednesday on one of the most politically charged dilemmas of the day, bound with themes of religion, sexuality and social custom.

The paired cases will be heard at a time when opinion polls show surging approval for gay unions and when prominent individuals and groups, such as the American Academy of Pediatrics, have been announcing support for same-sex marriage on a nearly daily basis.

Beyond the public drama, and central to the justices' regard for their own role, the marriage dispute offers a classic test of when courts should intervene in social dilemmas that have traditionally been the province of the states.

With such cultural and judicial crosscurrents, the controversy naturally draws a comparison to one of the court's most defining cases in the past 40 years. The 1973 Roe v. Wade decision made abortion legal nationwide just as states were weighing related legislation. The ruling generated a social and political backlash that endures today.

When the court declared a fundamental right to abortion, it preempted more permissive abortion laws that were emerging in some states. The ruling fortified political conservatism and the religiously based "right to life" movement. Some liberals who backed abortion rights, including now-Supreme Court Justice Ruth Bader Ginsburg, criticized Roe's sweeping rationale and its "rallying point" for the anti-abortion rights movement.

Some opponents of same-sex marriage have invoked the aftermath of Roe as they warn the justices against going too far too fast. They say that if the court forces all 50 states to accept gay marriage, the same as for abortion rights four decades ago, it will only prolong the gay-rights conflict.

Supporters of marriage for gay men and lesbians declare the comparison to Roe inapt and highlight the court's historic role of protecting minorities against bias. They say it would be wrong to wait to declare a constitutional right until more states, beyond the current nine and the District of Columbia, allow same-sex marriage.   Continued...

Bernie Liang (L), and Ryan Hamachek, show their rings after getting married outside Seattle City Hall in Seattle, Washington December 9, 2012. REUTERS/Cliff Despeaux