News & Politics

Supreme Court Will Consider Same-Sex Marriage and Some Gay Rights Activists Are Worried

The highest court in the country said that it would take up two major cases concerning gay rights.

Photo Credit: rSnapshotPhotos/

The Supreme Court announced Friday that it would agree to hear two major cases concerning gay rights in this country. The highest court in the country said that it would take up the constitutional issues surrounding Proposition 8, the California referendum that banned gay marriage in the state, and the Defense of Marriage Act (DOMA), a Bill Clinton-era law that denies same-sex couples federal benefits that opposite-sex couples enjoy.

The California case comes after a federal court in San Francisco ruled that Proposition 8 was unconstitutional. That decision was stayed, and the Supreme Court is now looking at it. The high court has a number of options it could pursue on the Proposition 8 case, as the New York Times points out: “It could reverse it, leaving California’s ban on same-sex marriage in place. It could affirm it on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.”

Advocates are excited at the prospect of the Supreme Court weighing in on gay rights. But there is also some hesitation due to the possibility that the court could rule in a way detrimental to gay rights.

Some gay rights advocates worry that the fact that 41 states in the nation already have banned gay marriage does not bode well for their cause. The Wall Street Journal notes that “the Supreme Court does not often get too far ahead of the country on hot-button social issues.”

"Mindful of history, I can't help but be concerned," one gay rights activist, Mary Bonauto, told the Wall Street Journal. Bonauto noted that in the important cases where the court had reversed discriminatory practices, like state prohibitions on interracial marriage and sodomy, the bans were only in place in a handful of states. The question is whether the Supreme Court is willing to buck the will of people in dozens of states, though gay rights advocates point out that no majority should be able to discriminate against a minority based on the amount of votes they garner.

The Supreme Court cases also pose a test for the Obama administration. President Obama famously came out in support of gay marriage earlier this year. Yet the administration has not taken up a public stance on the issue of Proposition 8, as the Washington Post notes. While the Supreme Court did not ask the administration to weigh in on the Proposition 8 case, they could press the administration to take a stand on DOMA.

The Obama administration has already said that they believe DOMA is unconstitutional, and have not defended the law in court. That has left the defense of the discriminatory law to the House Republicans.


Alex Kane is former World editor at AlterNet. His work has appeared in Mondoweiss, Salon, VICE, the Los Angeles Review of Books and more. Follow him on Twitter @alexbkane.