- The Washington Times - Monday, March 25, 2013

The battle for public opinion on gay marriage will be in full swing Tuesday, with supporters and opponents rallying on the streets as the U.S. Supreme Court begins two days of oral arguments on two landmark cases.

Outside the court, tens of thousands of advocates are expected to flood the plaza across from the Capitol to make their points. Leaders from advocacy groups — ranging from the National Organization for Women and Human Rights Campaign in support of gay marriage to the Family Research Council and National Organization for Marriage, which oppose it — will be manning the microphones while their supporters carry signs, rally, march and pray. The court by its rulings could settle — or intensify — a surging national debate pitting traditional values against changing social attitudes toward same-sex unions.

At issue are the constitutionality of the federal Defense of Marriage Act (DOMA) and California’s voter-approved Proposition 8, both of which effectively deny legal recognition to gay marriage. The Supreme Court is not expected to rule on either case for several months, but both sides will be monitoring the oral arguments closely for clues on how the nine justices will rule.

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Would-be spectators have been lined up for days for one of the coveted seats for the court arguments, amid reports that some of those waiting —and braving an early-spring Washington snowstorm — can charge up to $6,000 to give up their place in line for the court sessions.

Despite the White House’s obvious interest in this week’s hearings, presidential spokesman Josh Earnest said he wasn’t sure whether any administration officials will be in the courtroom to watch. “The Supreme Court doesn’t actually televise the hearings, so it will impact our ability to watch it,” he deadpanned.

But after Mr. Obama’s election-year conversion to support of gay marriage, Mr. Earnest said the president has followed the issue closely, as have many others across the country.

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The Obama administration filed a brief seeking to overturn California’s Proposition 8. The court granted permission for the administration to participate in oral arguments in the case, which are scheduled for Tuesday.

The administration also is challenging the constitutionality of DOMA which, like Proposition 8, defines marriage as between a man and a woman and bars recognition of same-sex marriages in those states where it is now legal. Those arguments are scheduled for Wednesday.

The interest in the case is obvious, Mr. Earnest said, considering the long lines of those outside the high court already waiting for a chance to witness the oral arguments. “I know that there are some people who’ve been waiting in line for quite some time already,” he said. “It should make for some pretty good legal theater, if nothing else.”

Questions on standing

The nine Supreme Court justices’ questions at the Tuesday and Wednesday oral arguments are expected to offer clues to what they might eventually decide. Legal observers say the court has the option to go big or go small in the scope in its decisions.

First, the justices will examine whether defenders of Proposition 8 and DOMA have legal “standing” — a clear stake in the law and in the decision — to even bring their case before a court for judgment.

Neither marriage law is defended by state or federal executive branches, as would normally be expected. Instead, Proposition 8 is defended by ProtectMarriage.com — the grass-roots authors and backers who pushed the voter initiative — while Congress is defending its law via a team of lawyers retained by the House of Representatives’ legal advisory group.

In the Proposition 8 case, the high court will hear arguments about standing as part of the one-hour session Tuesday. If the high court ultimately decides the backers of the law do not have standing, Proposition 8 is expected to be struck down, based on the ruling of a lower-court federal district judge.

In the DOMA case, the standing issue is so important that the high court asked Harvard Law School Professor Vicki C. Jackson to argue the position that the high court does not have jurisdiction over the case. Additional arguments on standing, offered by attorneys representing the Justice Department and the House of Representatives, will be part of a 50-minute session Wednesday.

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