High court set to decide gay marriage

Affirmative action also on justices’ docket

If the U.S. Supreme Court decides to strike down the law restricting federal marriage benefits for same sex couples this week, Lorna Oglesby won’t have to figure out how to adopt her wife, Felicia, as a legal dependent to make sure she inherits their assets someday.

The couple, who traveled from Memphis to Massachusetts to be legally married in 2009, has already spent a significant amount of money on legal fees to try to find ways around the Defense of Marriage Act, the 1996 law establishing that neither the federal government nor individual states have an obligation to recognize same-sex marriages.

In what will likely be its last week in session, the court is expected to rule as early as Monday on the constitutionality of DOMA; California’s Proposition 8, which establishes state recognition for only male-female marriages; as well as affirmative action.

If the court does overturn DOMA, it will be a landmark victory for propo-

nents of so- called marriage equality — particularly for those who live in states like Tennessee, which is not one of the 12 where same-sex marriage is legal.

“The most important thing that might happen is the recognition that we’re married,” Felicia said. “It wouldn’t be like ‘gay married,’ it would just be ‘married.’ ”

This is the first time that America’s highest court has examined the issue of same-sex marriage since the mid-1990s, a time when public opinion on the issue looked vastly different.

Just over half of Americans say they support the right of gay and lesbian couples to marry, according to a Pew Forum survey. The study also found that 72 percent of Americans believe legal recognition of same-sex marriage is inevitable whether they support it or not.

“It shouldn’t have to be the linchpin that gives us credibility, but it really is,” said Robert Blaudow, who married his husband in California in 2008 just before Prop 8 prohibited such unions in the state. “I don’t think anything is more powerful to gay individuals in the United States of America right now than this.”

But despite the anticipation or dread some may feel at the impending decision, Rhodes College political science professor Marcus Pohlmann said the court has several options for how it rules, or chooses not to rule, on DOMA and Prop 8.

“They could decide to just leave it up to the states, which is kind of what it is now,” Pohlmann said.

Or, he added, justices could go as far as to rule that the guarantee of equal protection under the law afforded by the U. S. Constitution includes the right of same-sex couples to marry.

A more moderate and more likely version of a verdict that strikes down DOMA would, he said, require federal recognition of same-sex marriages, but would not compel individual states to allow or recognize them. The court could also uphold DOMA or toss the case out.

But one thing about the few remaining items on the Supreme Court’s docket is for certain, Pohlmann said. “They obviously put the hottest (issues) off to the very end.”

The other “hot” issue is affirmative action, a practice of granting extra consideration in higher education admissions to underrepresented racial minorities. While the overall goal of affirmative action was to help correct institutionalized imbalance and promote diversity, many now criticize the practice as outdated or unfair.

“The question here is whether we have moved far enough beyond Jim Crow and slavery that it’s not as necessary,” Pohlmann said. “

Although the 14th Amendment guarantees equal protection under the law, Pohlmann said it was considered more flexible when it came to “fixing past wrongs as a legitimate exception to absolute equality.”

“But over time the Supreme Court seems to be reading the 14th Amendment more literally ... by saying it’s as much discrimination whether it’s used to keep them from getting something or to help them get it.”

The court could go as far as to determine that any consideration of race is discriminatory, even if that consideration is favorable, or it could reaffirm the use of affirmative action as it now stands. It could also simply restrict affirmative action even further.

Pohlmann’s guess, though, is that regardless of the high court’s ruling on the issue next week, the cultural tide will shift away from race and more toward acknowledging socioeconomic status as a primary factor in access to higher education — a factor, he said, which naturally accounts for the existing racial disparities among poor people in many American cities.

“A kid who goes to a bad public school probably doesn’t have many advantages no matter what color they are,” he said.