Same-Sex Marriage Could Be New Supreme Court Litmus Test

With the upcoming retirement of Supreme Court Justice David Souter, President Obama will soon get his first crack at nominating someone to the high court. According to the Washington Post, the nominee's view on same-sex marriage could replace abortion as the key litmus test among senators who will vote on confirmation.

In addition to shedding more light on the nation's most contentious unfolding social drama and legal frontier, Senate Republicans say the debate could provide a road map to an Obama nominee's judicial philosophy.

"It may reflect the degree to which they think that they're not bound by the classical meaning of the Constitution, and that they may want to let a personal agenda go beyond what the law said," said Sen. Jeff Sessions (Ala.), the senior Republican on the Senate Judiciary Committee.

"It is now the flash point where politics and law meet. That flash point used to be abortion. I don't think anybody thinks that's going to be the flash point in this nomination," said William A. Jacobson, a Cornell University law professor and conservative blogger.

Most Republicans and Democrats -- Obama included -- agree that individual
states should determine their own marriage laws. But Congress complicated that
process by approving the Defense of Marriage Act.

Rushed through by Republicans and signed by President Clinton on the eve of the 1996 election, the law allows states to ignore marriages performed in other states and denies federal recognition of legal gay marriages.

Under that law, same-sex couples are barred from receiving a long list of
federal benefits -- more than 1,100. Justice Samuel A. Alito Jr., the most
recent addition to the Supreme Court, acknowledged during his January 2006
Senate hearing that "several constitutional doctrines seem to be implicated" in
the legislation, including the "full faith and credit" clause that compels
states to honor judgments by other state courts. Legal scholars differ on the
clause's application to gay marriage, Alito noted, and "that's an issue that may
well come up within the federal courts" and is "almost certain to do so."

For conservative activists, the Defense of Marriage Act is the levee holding back the flood. The 2003 Supreme Court decision that threw out a Texas sodomy law sparked scores of civil challenges to state and federal gay-marriage restrictions based on discrimination and other claims. Conservative legal organizations have mobilized in opposition to these lawsuits and to increasing activity on the issue in state legislatures. One priority is to establish the right not to recognize same-sex marriage on religious grounds. In New Hampshire, Gov. John Lynch (D) is seeking protections for churches and their employees before he signs his state's pending same-sex marriage bill into law.

Conservative groups are scrutinizing potential nominees for any hint of where they stand on the Defense of Marriage Act and other issues related to same-sex marriage. Gary Marx, executive director of the Judicial Confirmation Network, one of the leading groups revving up for the summer proceedings, said of the gravity of the marriage issue, "A lot of it does depend on who the nominee is."

Folks, please don't underestimate the anger festering within many conservatives right now. Having staked out the moral high ground and still getting their asses kicked, as they have consistently in 2009, the righteous indignation among conservatives has welled up until it is ready to explode. James Dobson may have run up the white flag (at least temporarily), but federal recognition could be the line in the sand that the right wing draws to protect or die trying.

With lukewarm at best support for LGBT equality from the White House, they still have a good chance to accomplish that on the federal level. Obama's nomination will be another indicator of whether he is ready to engage in these issues or not.

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