It really is an idea whose time has come. If not this decision, another one — because the tide has turned, finally.
A four-year legal battle to extend the right of marriage to same-sex couples no matter where they live gets its moment before the Supreme Court on Tuesday in historic oral arguments difficult to imagine even a decade ago.
The first of two days of oral arguments over what supporters call marriage equality brings the boldest of the claims that gay rights activists will make — that there is a constitutional right to same-sex marriage that states may not deny.
The nine justices will consider California’s Proposition 8, which voters passed in 2008 to define marriage as between a man and woman and to overturn a state Supreme Court decision earlier that year that approved same-sex marriage.
A San Francisco judge ruled broadly for the two couples who brought the Prop 8 challenge, finding that the equal protection provided by the Constitution required that they — and by extension other same-sex couples across the country — be allowed to marry.
A panel of the U.S. Court of Appeals for the 9th Circuit ruled for the couples more narrowly. It said that once California had extended the right to marry — about 18,000 same-sex couples wed before Prop 8 was approved — it could not be withdrawn.
The U.S. Supreme Court’s affirmation of that decision would limit the impact to California.
But those are not the only options before the nine justices. They could conclude that the Constitution is silent on the issue and that California voters were within their rights to write into the state constitution a traditional definition of marriage.
They could also decide that the issue is not properly before the court. Because California’s political leaders disagree with Prop 8 and have chosen not to defend it, the court will have to decide whether proponents of the measure may be the ones to do so.
If not, the state probably will be free to again issue marriage licenses to same-sex couples.
On Wednesday, the court will hear a more modest constitutional challenge. It concerns the Defense of Marriage Act, passed by Congress in 1996 to withhold federal recognition of same-sex unions performed in states where it is legal. At the time, there were none. But now nine states, including Maryland, plus the District of Columbia have legalized such unions.