Lawyers challenging the measures argue that Prop. 8 and DOMA violate the rights of same-sex couples by treating them like second-class citizens. "With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry. Your loving relationship is not equal to or respected enough to qualify to be called a marriage," writes Washington lawyer Theodore Olson in his brief seeking to overturn Prop. 8.
On the other side, lawyers counter that it is proponents of same-sex marriage who are seeking to change an institution that has existed throughout history as the symbolic joining of male and female. Preservation of this tradition is not discrimination, they say.
"Providing special recognition to one class of individuals does not demean others who are not similarly situated," writes Washington lawyer Charles Cooper in his brief urging the court to uphold Prop. 8. "It is simply not stigmatizing for the law to treat different things differently, or to call different things by different names."
* * *
The most basic question at the heart of the debate over same-sex marriage is whether the US Constitution protects a fundamental right to marry regardless of sexual orientation.
Gay marriage proponents say it clearly does. Supporters of traditional marriage counter that the Supreme Court has never recognized such a right. They cite a 40-year-old precedent, Baker v. Nelson, that upheld a Minnesota law restricting marriage to one man and one woman.
But that's not the precise issue before the court. The justices have agreed to examine whether same-sex couples are entitled – under the Constitution's equal protection provisions – to be treated equally when it comes to marriage and the benefits of marriage.
That's where Scalia's prediction in the 2003 case may prove prophetic, and perhaps decisive. The Texas statute invalidated in 2003 had been justified by state lawmakers as a reflection of society's shared view that homosexual conduct was immoral. Kennedy's opinion rejected the use of sexual morality as a justification for criminalizing a consenting adult's private intimate conduct.