Same-Sex Marriage: The Decisive Questions
Analysis
Twenty-two months ago, the Supreme Court — perhaps not fully realizing that it was doing so — set off a constitutional revolution. In a decision that spoke somewhat tentatively about an “evolving understanding of the meaning of equality,” the Court in United States v. Windsor saw in that understanding a deep even if new respect in America for the dignity of same-sex couples who choose to marry.
What followed from that, with astonishing speed, was that the list of states where such marriages became legal expanded from twelve to thirty-six. Lower federal courts, in particular, led the way. On Tuesday, at a two-and-a-half-hour hearing, the Supreme Court confronts a simple question: did those courts go astray, and misread what Windsor really meant?
A cabinet shelf full of about one hundred and fifty briefs introduced the Justices to that question from many angles. But the actual outcome of the case known as Obergefell v. Hodges could well depend upon how the Court answers three core onstitutional issues. Each by itself, in fact, could be decisive: who decides? what right is at issue? what is the constitutional test?
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