Highest court to decide on gay marriage U.S. Supreme Court

A man drapes himself with the rainbow flag in supporter of the overturning of Proposition 8 assemble at City Hall after marching down Market Street in San Francisco, Calif., on Wednesday, August 04, 2010. A man drapes himself with the rainbow flag in supporter of the overturning of Proposition 8 assemble at City Hall after marching down Market Street in San Francisco, Calif., on Wednesday, August 04, 2010. Photo: Chad Ziemendorf, The Chronicle Photo: Chad Ziemendorf, The Chronicle Image 1 of / 1 Caption Close Highest court to decide on gay marriage 1 / 1 Back to Gallery

(09-26) 10:31 PDT SAN FRANCISCO -- By next summer, the U.S. Supreme Court will almost certainly have decided whether gays and lesbians can marry in California and whether same-sex couples legally married in their home states can be denied federal benefits.

The first word could come as soon as Monday, when the court is expected to announce decisions it made this week to deny many of the thousands of appeals it has received in recent months from the losing sides in lower-court rulings. One of those appeals came from the sponsors of Proposition 8, California's voter-approved ban on same-sex marriage.

Otherwise, it could be a month or two before the public knows whether the court will review Prop. 8 as well as a law withholding federal marital benefits to same-sex spouses.

In their 2012-13 term, which runs from October through June, the justices are being asked to make their most important statement on the legal status of sexual orientation since at least 2003, when the court struck down state laws against gay sex.

There's little likelihood they'll refuse.

Confident court

"One thing that defines this Supreme Court, both under Chief Justice John Roberts and William Rehnquist, is a sense of judicial power," said Adam Winkler, a UCLA law professor. "The court thinks it's competent to resolve any issue."

Prop. 8 is the 2008 initiative that defined marriage as the union of a man and a woman. The Defense of Marriage Act is the 1996 law that barred federal marital benefits such as joint tax filing, Social Security survivors' payments and immigration sponsorship to same-sex spouses.

Federal appeals courts have found both laws to be unconstitutional acts of discrimination, but they remain in effect while the cases continue.

In striking down Prop. 8 in February, the Ninth U.S. Circuit Court of Appeals stopped short of declaring a constitutional right to same-sex marriage. Instead, the court said the ballot measure had stripped a historically persecuted minority of rights it had won from the California courts less than six months earlier - much like an antigay Colorado law the U.S. Supreme Court had overturned in 1996.

Prop. 8's sponsors sought Supreme Court review, saying the purportedly narrow ruling was a "judicial death sentence for traditional marriage laws." Lawyers for same-sex couples and the city of San Francisco, which joined in the lawsuit, urged the court to deny review.

The Defense of Marriage Act's defenders - House Republicans who stepped in after President Obama withdrew his support - likewise contend the federal law barring benefits is supported by tradition and by Congress' power over the government's purse strings.

Not among initial cases

When the justices met behind closed doors Monday to decide which appeals to add to their docket from the thousands submitted over the summer, their case list included Prop. 8 and two Defense of Marriage Act appeals. Those cases were not among the six that the court accepted for review Tuesday.

One reason could be that the court has decided to turn down the appeals and let the lower-court rulings stand, a decision that would be announced Monday. If review is denied in the Prop. 8 case, same-sex marriage will be legal in California - not immediately, but probably within a few weeks, unless lower courts heed a new set of objections by the measure's sponsors.

But the court may also have decided to delay review of the marriage cases until a future conference. With a huge volume of appeals at this week's initial conference, it wouldn't be unusual for one or more justices to ask for more time to study cases that raise major issues, said Rory Little, a UC Hastings law professor and former Supreme Court clerk.

November decision?

The court's next conference is scheduled Oct. 5, but some analysts said they may be waiting until November, after written arguments are completed on two additional Defense of Marriage Act appeals. Another DOMA case - involving the denial of federal insurance benefits to the wife of Karen Golinski, a federal court attorney in San Francisco - is also awaiting review.

Coincidentally, voters in Maine, Maryland and Washington state will also consider ballot measures to legalize same-sex marriage on Nov. 6, while voters in Minnesota will decide whether to amend their state constitution to forbid same-sex marriage.

"My suspicion is that the court wants to wait till it has all the marriage cases fully briefed, and then decide which marriage cases, if any, it wants to take," said Jane Schacter, a Stanford law professor.