After two days of intense and nuanced debate within the halls of the U.S. Supreme Court, supporters of gay marriage certainly have cause for optimism.
On Wednesday, for the second day in a row, the line of questioning suggested the high court is at least skeptical about the constitutionality of laws that prevent same-sex couples from marrying and from enjoying the same federal benefits as heterosexual couples.
The focus was the Defense of Marriage Act, passed by Congress in 1996, which prevents legally married gay couples from receiving the same federal benefits — tax breaks, survivor benefits, health insurance, etc. — as other married couples. Same-sex marriage is legal in nine states and the District of Columbia.
The central question was this: Does the U.S. government have any rational basis for denying benefits to legally married gay couples?
The majority seemed to concur that the answer is no.
Justice Anthony Kennedy, considered the court's swing vote, suggested that DOMA was in conflict with the traditional right of states to "regulate marriage, divorce, custody.<TH>.<TH>."
A day earlier, the focus was on California's Proposition 8, which voters approved in 2008 rescinding marriage rights for same-sex couples. There again, the justices appeared dubious about overturning lower courts that already found the initiative to be unconstitutional.
Nevertheless, supporters of same-sex marriage should not set expectations too high. While it's possible-to-likely that the high court will overturn all or part of DOMA, the possible outcomes for the Proposition 8 case are many and varied.
One of the least likely scenarios is that the court would use the Proposition 8 case as an opportunity to offer a blanket endorsement of the constitutionality of gay marriages and expand same-sex marriage rights to other states beyond California.
A more likely scenario would be a narrow ruling that finds the initiative unconstitutional because it denied rights already granted by the state Supreme Court.