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Supreme Court takes up gay marriage: what the justices have to decide

The main question before the Supreme Court is not whether the Constitution protects gay marriage, but whether Prop. 8 and DOMA discriminate in violation of the 14th Amendment.

Sarah, left, and Melissa Adams show off the first same-sex marriage license approved at the Whatcom County Auditor's Office at the Whatcom County Courthouse in Bellingham, Wash., on Thursday, on the first day the state's law legalizing gay marriage goes into effect.

Philip A. Dwyer/The Bellingham Herald/AP

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The US Supreme Court has set the stage for the most important judicial examination of gay rights in America – so far.

By agreeing on Friday to decide two different appeals involving same-sex marriage, the high court has set itself up as ultimate arbiter in an emotional and divisive battle at the heart of the nation’s raging culture war.

But the central question of these appeals is not whether the US Constitution protects a right to same-sex marriage.

Instead, the issue before the court is whether measures like Proposition 8 in California and the federal 1996 Defense of Marriage Act (DOMA) amount to invidious discrimination against homosexuals in violation of the Equal Protection Clause of the 14th Amendment.

However, should a majority of justices agree, the court’s decision might well provide a gay rights landmark equivalent to Brown v. Board of Education.

Supporters of the anti-gay marriage measures say they are merely upholding the traditional definition of marriage, as a union between one man and one woman.

Nonetheless, since 2004, more than 100,000 same-sex marriages have been performed in the US.

At its most basic, the issue the justices must determine is how equal protection is to be enforced in cases involving sexual orientation and marriage.


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