Supreme Court weighs same-sex marriage debate

Need for ruling as lawsuits progress

Carol Sabin did not relocate because  Missouri did not recognize her as wed to her wife.
Essdras M Suarez/ Globe Staff
Carol Sabin did not relocate because Missouri did not recognize her as wed to her wife.

WASHINGTON — A decade after Massachusetts allowed same-sex couples to marry, the Supreme Court is on the verge of a historic step that could determine whether other states must grant that option.

Justices are considering petitions in five states that stem from challenges to same-sex marriage bans. The cases would force the court to rule on a fundamental question: whether the Constitution protects the right to same-sex marriage.

A ruling could impact Massachusetts because its gay and lesbian couples, after years of uncertainty, may find their unions more widely recognized. Many in the state, the first to legalize same-sex marriage, are keeping close watch.


“It’s such an obvious discrimination if you are excluding a group of people from being protected by the law,” said Carol Sabin, a bookkeeper from Somerville who decided against relocating to her company’s Missouri headquarters partly because that state did not recognize her as wed to her wife. A change “would make life a heck of a lot easier for all of us.”

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Opponents of gay marriage also want the Supreme Court to act.

“The lower courts have become so out of control on this issue that maybe the Supreme Court has to step in,” said Brian Camenker, founder of MassResistance, a socially conservative group based in Waltham that hopes the high court will not recognize same-sex marriage as a constitutional right.

Gay marriage, valid in 19 states and the District of Columbia, is banned in 31 states. Some same-sex couples remain caught in legal limbo because they live in places where a judge overturned a local ban but the state or county has appealed.

The Supreme Court’s justices met Monday in a closed-door conference to consider the petitions, three from Virginia, and one each from Oklahoma, Utah, Indiana, and Wisconsin. They could choose to take one or more cases, postpone a decision until more lower courts rule, or drop the matter. The court did not choose any of the cases in its first selection round on Thursday. The court’s term begins Monday.


After years of political battles over gay marriage, the topic sparked less interest in this year’s races. A Washington Post-ABC poll earlier this year found a record 59 percent of Americans support same-sex marriage.

In all of the potential cases, gay marriage groups won in appellate courts. Justices might decide to wait for a different ruling, which could come from a pending decision in the Sixth Circuit that involves Michigan, Ohio, Tennessee, and Kentucky.

Splits “are impetus for the Supreme Court to get involved quickly so everyone has the same protections,” said Martha Davis, a professor of law at Northeastern University. “Without that, one of the big reasons to get involved in the case is missing.”

A decision to deny the cases would make the last ruling final, allowing same-sex couples to marry in those states and others tied to the same circuit courts.

But legal analysts think it’s likely the court will take up the case — sooner or later.


“It would seem strange to me that the court would deny review in all these cases, and thereby change the law in all of these states, if at some future time it was going to take up the issue and go the other way,” said James Esseks, director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender & AIDS Project.

‘We’ve got this critical social issue . . . It’s time for them to give us an answer.’

Gary Buseck, Legal director of Boston-based Gay & Lesbian Advocates & Defenders 

The Supreme Court entered the battle over same-sex marriage last year when it struck down a law that banned the federal government from recognizing legal same-sex marriages. As a result, couples in states where gay marriage is recognized can receive federal benefits such as Social Security and health insurance.

But the court did not address whether there is a constitutional right to same-sex marriage — a position that is at issue in the petitions before the court. State officials are defending their positions in Utah, Indiana, and Wisconsin, but staying out of the case in Oklahoma. Virginia is pushing for review of the case but not defending the state’s marriage ban. The Oklahoma case is unique in that it focuses only on couples married in the state, not those who wed elsewhere. The Wisconsin case examines the effect of domestic partnership laws on marriage bans.

Some petitions gear their arguments around a fundamental right to marry, whereas others examine whether same-sex couples who want a marriage license deserve equal protection under the law.

“We’ve got this critical social issue as to whether same-sex couples have access to marriage or not,” said Gary Buseck, legal director of Boston-based Gay & Lesbian Advocates & Defenders, which has signed on to assist with the Utah case. “It’s time for them to give us an answer one way or another.”

Utah filed its appeal first, although that doesn’t necessarily mean the court will choose it. The cases justices select could reveal what aspect they intend to examine. Justice Ruth Bader Ginsburg has acknowledged the same-sex marriage question would again face the court, but said recently that there was “no need for us to rush to step in.”

Justice Antonin Scalia, when asked about timing on Wednesday, told a crowd at the University of Chicago, “Soon, soon!” according to an Associated Press report.

Massachusetts, even if the court denies the appeals, has set a precedent.

“It’s exciting for those of us in Massachusetts to think about the role the court played in setting off these very rapid challenges to the legal landscape,” said Davis, the law professor. The state’s high court upheld marriage between same-sex couples in 2003 and the following year issued the first wedding licenses.

Arguments, if the court takes a case, could come as early as January.

Jessica Meyers can be reached at Follow her on Twitter @jessicameyers.