The Ed Show | December 07, 2012
>>> in the big finish tonight, the supreme court will hear its first same-sex marriage case. justices agreed to hear arguments about proposition 8 and the defense of marriage act . proposition 8 is the 2008 ballot measure that made same-sex marriage illegal in the state of california . residents voted 52-48 to eliminate the right of same-sex couples to marry. the 9th court of appeals struck down proposition 8 on the basis it stripped individuals of rights previously granted when same-sex marriages were permitted in the state. opponents of same-sex marriage appealed the ruling to the supreme court which will now review the decision. the court will also take up the defensive marriage act case which challenges a section of the law that defines marriage as between a man and a woman for the purposes of receiving federal benefits . this mean the highest court now has the opportunity to rule on whether gay americans have the same constitutional right to marry as hetero sexual americans . the court 's decision to hear these cases comes as a series of election victories for same-sex marriage. last month washington, maine, maryland became the first states to approve same-sex marriage ballot measures . they joined new york, connecticut, iowa, massachusetts, new hampshire, vermont and the d.c. which already allows same-sex marriage marriages. they will expect to make a decision in june. i'm joined by jonathan turley . this of course, is the civil rights issue of our time. what are the justices dealing with?
>> quite frankly, what they are dealing with is obviously an historic moment. but one that puts the legacy, not just of the court but the individual justices on the line. this is a court that has a rather checkered history with regard to the rights of gay and lesbian citizens. it was only in 2003 that the court ruled you couldn't criminalize homosexuality. that's how recent that was. and we have seen an evolution of the court that's been a bit slower than society as a whole. remember in the earlier decision that lawrence turned over, or overturned. justice powell told his clerk that he had never met a gay person in his life. that clerk was gay but he didn't know it. but it shows how far the court has come. but the question is has it gone far enough? it could come down, e again, to justice kennedy .
>> what will each side -- what legal arguments will be made? what will really stand out here that will catch the attention of the american people ? what legal arguments will each side make?
>> ed, is often the case, the initial arguments are not going to be the ones that citizens expect. this is an incredibly important series of cases. there were a number to choose from. they selected two. those two cases do give them a very broad front on which to act. but they can avoid the critical question of the equal protection of gay and lesbian couples because both cases involve so-called standing questions. these are questions of whether these parties have a right to present this case. probably the most serious standing questions are on the doma case and windsor case. the cases being defended by a group of republican members and it is not clear that they have actual standing to bring the case. so if the court says you don't have standing, then the e lower court would prevail and windsor would prevail.
>> how would the court 's ruling affect marriage equality ?
>> it couldn't be more important. that case came for african- americans in 1954 , i believe. this could be that moment. we're all hoping that it is. this country is an imperfect union by mere fact that we have not recognized the right of people in love to be married. there are 120,000 couples in this country that are directly -- have their interests directly at stake. but it's not just them. the question is will this country embrace this fundamental human right? and i don't believe kennedy wants to be on the wrong side of history on that.
>> this is the latest challenge to the constitutionty. is doma doomed?
>> i think it is. there are four district courts say i saying it violated the rights of gay and lesbian couples. there are two court of appeals . so there's a heavy judicial pile of precedent here from the lower courts. the only question remains is one of standing. but i think that it really is losing steam. the questions going to be holings worth and whether they leave this question to states like california. and that could be a really painful decision if it goes the wrong way.
>> professor, great to have you with us. thanks so much.