Updated Monday, November 26, 2012 at 02:56 PM
WASHINGTON — After two decades in which gay rights moved from the margin to capture the support of most Americans, the Supreme Court justices this week will decide if now is the time to rule on whether gays and lesbians have a constitutional right to marry.
The justices must decide whether to hear an appeal from the defenders of California's Proposition 8, the 2008 voter initiative that limited marriage to a man and a woman.
At the same session Friday, the court will sift through several appeals to decide whether legally married gay couples have a right to equal benefits under federal law. Appeals courts in Boston and New York have struck down this part of the Defense of Marriage Act, and the justices are almost certain to take up a case to resolve that question.
The Proposition 8 case, known as Hollingsworth vs. Perry, presents justices with the more profound "right to marry" question.
Opinion polls now show a majority of Americans favor marriage equality, and support for it has been growing about 4 percent per year. On Nov. 6, voters in three states — Maine, Maryland and Washington — approved same-sex marriage, bringing the total to nine states.
Does the shift in public opinion suggest the court should uphold gay marriage now, or wait for more states to legalize it?
The defenders of Proposition 8 say their case "raises the profoundly important question of whether the ancient and vital institution of marriage should be fundamentally redefined," and in this instance, by federal judges.
A federal judge in San Francisco struck down Proposition 8 as discriminatory and irrational. In February, the 9th U.S. Circuit Court of Appeals affirmed that by a 2-1 vote, ruling the ban on gay marriage violated the Constitution's guarantee of equal protection of the laws. The majority relied heavily on a 1996 opinion by Justice Anthony Kennedy that had struck down an anti-gay initiative adopted by Colorado voters.
Usually, the justices are inclined to vote to hear a case if they disagree with the lower-court ruling. The most conservative justices — Antonin Scalia, Clarence Thomas and Samuel Alito — almost certainly think the 9th Circuit's ruling was dubious. Scalia, for example, says the "equal protection" clause, added to the Constitution after the Civil War, aimed to stop racial discrimination and nothing more. He often insists the justices are not authorized to give a contemporary interpretation to phrases such as "equal protection."
If Chief Justice John Roberts joins the other three, the conservatives would have the needed four votes to hear the Proposition 8 case.
They may hesitate. To form a majority, they would need Kennedy, the author of the court's two strongest gay-rights rulings. His 2003 opinion struck down a Texas anti-sodomy law and said the state could not "demean" gays by treating them as second-class citizens. Five months later, the Massachusetts Supreme Court, citing Kennedy's opinion, became the first to rule that gays and lesbians had a right to marry.
If the court were to take up the Proposition 8 case, Kennedy, 76, would be likely to control the opinion.
"If you care about history and your legacy, that must be pretty tempting, to write the court's opinion that could be the Brown v. Board of Education of the gay-rights movement," said Michael Klarman, a Harvard legal historian, referring to the case that ordered school desegregation.
If the court votes to hear the California case, it will be decided by late June. If the appeal is turned down, it means gay marriage will become law in California. The court may also put off a decision on the Proposition 8 case until the justices have decided on the constitutionality of the Defense of Marriage Act (DOMA), also by June. The court is likely to announce whether it intends to hear the cases by Dec. 3.
The high court has scheduled a closed-door conference for Friday to review the case of Karen Golinski, a staff lawyer for the federal appeals court based in San Francisco who married her partner of 23 years, Amy Cunninghis, during the brief 2008 window when same-sex marriages were legal in California.
The purpose of the meeting is to decide if that case or any of four others that also seek to overturn DOMA to put on the court's schedule for next year. The outcome carries economic and social consequences for gay, lesbian and bisexual couples, who now are unable to access Social Security survivor benefits, file joint income taxes, inherit a deceased spouse's pension or obtain family health insurance.
The federal courts that heard the cases all ruled the act violates the civil rights of legally married gays. Two appellate courts agreed, making it highly likely the high court will agree to hear at least one of the appeals, Lambda Legal Executive Director Jon Davidson said.
"I don't think we've ever had an occasion where the Supreme Court has had so many gay-rights cases knocking at its door," said Davidson, whose gay legal-advocacy group represents Golinski. "That in and of itself shows how far we've come."
EVAN VUCCI / AP
Supreme Court Justice Anthony Kennedy