Same-Sex Issues Swirl A Month Before Supreme Court Ruling

The Associated Press' move Thursday to add a new item to its stylebook, declaring that the terms "husband and wife" are acceptable for any legally recognized marriage—"regardless of sexual orientation"—was just one of the latest same-sex marriage-related announcements to grab headlines a month before the U.S. Supreme Court issues rulings on the hot-button issue.

Similar matters to make news this week include the following:

• The Associated Press reported that the Obama administration is considering urging the Supreme Court to overturn California's ban on gay marriage — a move that could have a far-reaching impact on same-sex couples across the country. The administration has one week to file a friend-of-the-court brief with the justices outlining its opinion on the California ban, known as Proposition 8. While an administration brief alone is unlikely to sway the high court, the government's opinion does carry weight with the justices.
• Lawyers for a lesbian Berkeley couple and a Burbank couple at the center of the Supreme Court fight filed a 54-page brief on Thursday challenging the constitutionality of Prop. 8. Lyle Denniston, who writes for the SCOTUS blog, called it a "bold attempt to portray the constitutional idea of marriage equality as a victim of homophobia, and to persuade the Court not to settle for a California-only decision."
•  In San Francisco, city attorney Dennis Herrera filed his last brief in the U.S. Supreme court advocating for equal marriage rights for lesbian and gay couples. The 62-page pleading addresses whether the 2008 ballot measure that eliminated marriage rights for same-sex couples in California violates the U.S. Constitution’s Equal Protection Clause, and whether the measure’s proponents had legal standing to pursue their appeals through the federal courts. 

Herrera’s brief rebuts legal arguments in defense of Prop. 8’s legitimacy, concluding that the measure’s actual justification—“asserting the inferiority of same-sex couples”—was discriminatory and plainly unconstitutional when it was enacted. The two California couples at the center of the case are Kris Perry and Sandy Stier of Berkeley, and Paul Katami and Jeff Zarillo from Burbank.

“It is implausible that more opposite-sex couples will marry, and have children in wedlock, if same-sex couples cannot marry as well,” Herrera's brief contends.  “Nor can Proposition 8 be justified as an exercise in promoting the well-being of children or families. It has no effect on gay couples’ ability to raise children, and in fact it denies tens of thousands of children who have same-sex parents the security and esteem of living in a marital family.”

Prop. 8 backers are trying to persuade the Supreme Court to leave the same-sex marriage ban instact, saying the state's voters had a right to restrict marriage to heterosexual couples.

Opponents of the Proposition 8 ban believe Obama signaled his intention to file a brief when he declared in last month's inaugural address that gays and lesbians must be "treated like anyone else under the law." An administration official told the Associated Press that Obama — a former constitutional law professor — was not foreshadowing any legal action in his remarks and was simply restating his personal belief in the right of gays and lesbians to marry, though the official said the administration was considering filing a brief.

The Proposition 8 ballot initiative was approved by California voters in 2008 in response to a state Supreme Court decision that had allowed gay marriage. Twenty-nine other states have constitutional amendments banning gay marriage, while nine states and Washington, D.C., recognize same-sex marriage.

The White House administration could also file a narrower brief that would ask the court to issue a decision applying only to California. Or it could decide not to weigh in on the case at all.

The Supreme Court, which will take up the case on March 26, has several options for its eventual ruling. Among them:

•   Uphold the state ban on gay marriage and say citizens of a state have the right to make that call.
• Endorse an appeals court ruling that would make same-sex marriage legal in California but apply only to that state.
•   Issue a broader ruling that would apply to California and seven other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. In those states, gay couples may join in civil unions that have all the benefits of marriage but may not be married.
• Rule that the Constitution forbids states from banning same-sex unions.

For weeks, supporters and opponents of Proposition 8 have been lobbying the administration to side with them.

Ahead of next week's deadline, nearly two dozen states have filed briefs with the court asking the justices to uphold the California measure.

Public opinion has shifted in support of gay marriage in recent years. In May 2008,
Gallup found that 56 percent of Americans felt same-sex marriages should not be recognized by the law as valid. By November 2012, 53 percent felt they should be legally recognized.

One day after the court hears the California case, the justices will hear arguments on another gay marriage case, this one involving provisions of the federal Defense of Marriage Act. The act defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.

The Obama administration abandoned its defense of the law in 2011 but continues to enforce it.
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Associated Press writers Julie Pace, Mark Sherman and News Survey Specialist Dennis Junius contributed to this report.

Copyright Associated Press / NBC Chicago

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