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How historic Supreme Court gay-marriage case will unfold: Q&A

The U.S. Supreme Court takes up what is probably its biggest civil-rights dispute in decades this week when it hears arguments that could lead to the legalization of same-sex marriage nationwide.

Exactly a year after the justices began hearing arguments on President Barack Obama’s health-care law, they will consider today and tomorrow two cases whose legal, political and practical stakes may prove almost as great. The high court has never before heard arguments on gay marriage.

Below are answers to questions about how the cases will unfold over the next three months:

What are the two cases?

One concerns the right to same-sex marriage itself while the second involves the federal benefits available to legally married gay couples.

The first centers on California’s Proposition 8, the 2008 ballot initiative that banned same-sex marriage in the state. The initiative effectively overturned a decision by the California Supreme Court, which had ruled five months earlier that the state’s constitution required recognition of same-sex nuptials. Two couples seeking to marry are challenging the law.

The second case concerns the Defense of Marriage Act, the 1996 federal law that defined marriage as a heterosexual union. Under the law, gay spouses can’t claim the federal benefits available to other married couples, including the rights to file a joint tax return and receive Social Security survivor benefits. DOMA, as the law is known, is being challenged by Edie Windsor, an 83-year-old New York resident fighting a $363,000 federal estate tax bill imposed after the 2009 death of her spouse.

What are the major legal issues?

In each case, the central question is whether the law violates the constitutional guarantee of equal protection. Depending on how the court approaches the cases, reaching the answer may involve several steps. An important preliminary question is whether laws discriminating against gays should be given “heightened scrutiny,” a stricter standard that judges already use in cases involving race or gender discrimination. Should the court invoke heightened scrutiny, it almost certainly will strike down both laws.

Opponents of Proposition 8 are also making arguments based on the Constitution’s due process clause, which the court has previously said makes marriage a “fundamental right.” In addition, the court will grapple with procedural questions about its power to resolve the two cases at all.

What are the possible outcomes?

In the Proposition 8 case, there is a spectrum of choices for the court. At one end, it could uphold the ballot initiative, reversing the decision of a federal appeals court. That would mean no gay marriage in California, though the state’s voters could go back to the polls and repeal the initiative. Gay marriage would remain a state-by-state issue.

Alternatively, the Supreme Court could allow gay marriage in California, without affecting the rest of the country, by adopting the appeals court’s reasoning. That court said states can’t strip gays of the opportunity to marry once they possess the right, as they did in California for the five months before Proposition 8 was approved.

A more far-reaching option — one suggested by the Obama administration — would be to say that states can’t deny the “marriage” label while letting gay couples form civil unions with all the rights and responsibilities of heterosexual spouses. Such a ruling would apply to nine states — California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, Rhode Island and Colorado.

Finally, the court could go big and declare gay marriage to be a constitutional right across the country.

How about with DOMA?

The options with DOMA look to be more straightforward. Assuming the case doesn’t get sidetracked by a procedural issue, the court in all likelihood will simply say whether the law is constitutional. There is no real middle ground.

Could we get a split decision?

Absolutely. Although the cases do have a common issue –whether to apply heightened scrutiny — they otherwise present distinct legal questions.

One plausible outcome would be for the court to strike down DOMA and uphold Proposition 8. The court — or at least the justices in its center — could reason that, while Congress had no rational reason to deny benefits to legally married gay couples, states can justify reserving marriage itself to heterosexuals.

Such a ruling would be a victory for federalism, leaving the issue of gay marriage entirely in the hands of the states.

Who are the justices to watch?

As is often the case, Justice Anthony Kennedy’s vote looms large. Kennedy has championed gay rights before, most recently writing the 2003 decision that said states can’t criminalize gay sex acts. Overturning the convictions of two men in Texas, he wrote that “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Even so, Kennedy made clear he wasn’t passing judgment on gay marriage.

Several other justices are potentially pivotal as well. Gay-rights supporters are looking at Chief Justice John Roberts, who cast the deciding vote to uphold Obama’s health-care law last year. Like several of his colleagues, Roberts has never ruled on gay rights. As chief justice, he may wish to write the court’s lead opinion, whatever it says.

Among the court’s four Democratic appointees, Justice Ruth Bader Ginsburg last year raised questions about how far she would go in backing gay marriage. Speaking at Columbia Law School, she said the court “moved too far too fast” when it made abortion legal nationwide in the 1973 Roe v. Wade case.

Who’s on which side?

With some notable exceptions, the case stacks up as a partisan clash, with Democrats including Obama backing gay marriage and Republicans led by House Speaker John Boehner opposed.

Exceptions include Theodore Olson, the Republican former U.S. solicitor general who is leading the legal challenge to Proposition 8. More than 100 prominent Republicans, most now out of office, also signed a brief opposing Proposition 8.

The gay-marriage side also has support from corporations, including Apple Inc., Morgan Stanley and Facebook Inc.

So what are the procedural issues?

In both cases, the justices asked the parties to submit arguments about the legal power of the court to rule. Depending how the court resolves those issues, one or both cases could be derailed.

With Proposition 8, the issue stems from the 2008 decision by then-Attorney General Jerry Brown, now the state’s governor, not to defend the measure in court. That prompted the official sponsors of the initiative, led by former state Senator Dennis Hollingsworth, to take up the defense.

The issue is whether Hollingsworth had legal “standing” to appeal after U.S. District Judge Vaughn Walker declared the law unconstitutional. Should the Supreme Court conclude Hollingsworth didn’t, its ruling would reinstate Walker’s decision.

The question then would become how broadly Walker’s ruling would apply. The group challenging the law says it would extend statewide, meaning gay marriage would be reinstated in California. Backers of Proposition 8 say the decision would apply at most to the two couples who sued to challenge the measure. The Supreme Court probably wouldn’t answer that question itself and instead would kick the case back down to a lower court for an answer.

And what is the procedural question with DOMA?

The issues with DOMA are similar, though not identical. The Obama administration argues that the law is unconstitutional, even while saying it’s obliged to continue enforcing it. Congressional Republicans are spearheading the defense.

The court will look at two closely related questions. The first is whether the Constitution gives the court power to decide the case, given that the plaintiff and defendant — that is, Windsor and the federal government — agree on the proper outcome. The court also will consider whether the congressional leaders have standing to press their own appeal.

Should the court conclude it lacks power to rule, the status of DOMA might be left in legal doubt for years.

What’s the state of public opinion?

Support for gay marriage has soared in recent years. A Pew Research Center poll released last week found that 49 percent of adults supported legalization, with 44 percent opposed. Ten years earlier a Pew poll found only 33 in support, with 58 percent opposed. The latest poll had a margin of error of plus or minus 3.0 percentage points.

Californians back gay marriage by almost 2-1, with 61 percent supporting it and 32 percent opposed, according to a Field Poll released last month. That survey had a margin of error of plus or minus 3.5 percentage points.

Any chance of television coverage?

No. As is its practice, the court won’t allow television cameras into its courtroom. The justices, however, are planning to release audio recordings of the arguments the same day they are heard.

When will the court rule?

As with health care last year, the ruling almost certainly will come at the end of the court’s term. The last week of June looks to be historic one way or another.

The cases are United States v. Windsor, 12-307, and Hollingsworth v. Perry, 12-144.

Recommended Citation: Greg Stohr, How historic Supreme Court gay-marriage case will unfold: Q&A, SCOTUSblog (Mar. 25, 2013, 11:09 PM),