Analysis: Supreme Court Will Not Budge On Same Sex Marriage

Attorney Charles Cooper argues for supporting California's Proposition 8 in the U.S. Supreme Court in Washington

If the country is rushing headlong toward full-throated endorsement of same-sex marriage, the Supreme Court apparently didn’t get the memo.

Over two days of oral arguments on what has been described as the civil rights issue of the 21st century, the justices spent more time addressing mundane matters of states’ rights and judicial standing than threshold issues of equality and morality.

The result still may be at least incremental progress for the gay rights movement, but it’s likely to come more with a whimper than a bang — and with substantial regrets about the way the two cases were presented, argued and decided.

The best guess at this point is that the court, controlled by Justice Anthony Kennedy, its swing vote, will leave California’s gay marriage ban in the hands of that state’s courts, which already have struck it down. That would legalize gay marriage in the nation’s largest state — no small matter — but would not implicate similar bans in 37 other states.

And even on the federal Defense of Marriage Act, which offered a fatter target for the court because it denies financial and other benefits to legally married same-sex couples, the court fretted more over the government’s jurisdiction than matters of morality.


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