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The Stage Set for Historic Ruling as the Supreme Court Considers Same-Sex Marriage

The California case could have the most sweeping impact.

The Supreme Court will consider two cases this week that gay-rights advocates hope will result in historic rulings that pave the way toward marriage equality for same-sex couples across the country.

On Tuesday, the court will hear arguments in a case challenging California’s ban on same-sex marriage established by Proposition 8, a voter referendum passed by a narrow margin in 2008. The ban was put in place after thousands of same-sex couples were legally married in the state.

On Wednesday, the court will hear a challenge to the Defense of Marriage Act (DOMA), which prevents the federal government from recognizing same-sex marriages in states where they are legal.

The California case could have the most sweeping impact on marriage rights. A broad ruling by the court could find any ban on same-sex marriage rights to be unconstitutional and effectively strike down state bans across the country, or a narrower ruling could simply strike down the California ban. The court could also disagree with lower courts and uphold Proposition 8.

The plaintiffs, challenging Proposition 8 on behalf of two same-sex couples in California, argue that the ban discriminates against same-sex couples and violates their constitutional right to equal protection under the 14th Amendment.

The California Supreme Court agreed with plaintiffs and struck down the ban in 2010, and a federal appeals court later upheld the ruling. California officials refused to defend the ban after the state’s high court struck it down.

In a press conference last week, the legal team challenging the ban expressed confidence that the Supreme Court would agree that, under the Constitution, a state cannot deny marriage rights.

“And if you look at the (Supreme Court’s) history, as you know, that’s in the historical tradition of the court,” said Ted Boutrous, a member of the legal team challenging Proposition 8. “The court stands to protect peoples’ rights and that’s what we’re asking the court to do in this case.”

When asked if his team is asking the high court to declare that no state can deny same-sex couples the right to marry, Boutrous simply said, “Yes.” But if the court decides to only strike down the California ban, he said, the ruling will still have national implications.

“So I think that even if the decision is more narrowly crafted, the domino effect will have begun,” Boutrous said. “And if the Supreme Court strikes down Proposition 8, I guarantee it will not be … some sort of fueling of states to discriminate further.”

David Boies, a leader of the legal team challenging Proposition 8, said that if the court agrees with their argument that the ban is unconstitutional, the ruling would resolve the DOMA case in favor of equal marriage rights as well.

Proponents of Proposition 8 will argue that the Supreme Court should not strike down a decision made by California voters through the democratic process. California voters, they argue in their brief, have “simply reserved a special form of recognition and support to those relationships that have long been thought to uniquely further vital societal interests.”

Their legal brief also argues that procreation is a main purpose of marriage.

“Marriage is thus inextricably linked to the objective biological fact that opposite-sex couples, and only such couples, are capable of creating new life together and, therefore, are capable of furthering, or threatening, society’s existential interests in responsible procreation and childrearing,” the proponents argue.

Sandy Stier and her partner Kris Perry, two of the plaintiffs who wish to marry and are represented in the case, have raised four children. Stier said that the success of their family – and the success of families like theirs – is a major inspiration behind participating in the legal battle.

“And we understand that discrimination hurts people and it hurts children from being their best selves and having every possible opportunity feel available to them,” Stier said. “And it’s really motivated us to be in the case and to feel quite passionately about this issue.”

Solicitor General Donald B. Verrilli has filed a brief on behalf of the federal government in support of the plaintiffs asking the Supreme Court to declare the Proposition 8 ban unconstitutional and strike it down.

Public opinion is also on the plaintiffs’ side as the nation’s attitude toward gay marriage continues to move in the direction of equality. A recent Washington Post-ABC News poll shows that 58 percent of Americans support equal marriage rights for same-sex couples, while only 36 percent wish to keep same-sex marriage illegal. A decade ago, only 37 percent of those polled favored same-sex marriage rights, while 55 percent opposed them.

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