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Not all arguments will be inside as Supreme Court weighs gay marriage

Tens of thousands expected to rally

- 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.

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.

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.

Privately, advocates for both sides have said they doubt the justices will throw the cases out on technical grounds such as standing, but rather will go straight to the merits of the cases and rule on the constitutionality of the marriage laws themselves.

Standard of review

A second pivotal issue is the standard of review that should apply to cases involving sexual orientation and equal rights.

Currently, such cases are given "rational review," which means the courts assume legislatures have legitimate reasons for their laws, and anyone trying to change a law must prove that it is irrational and serves no state purpose — a high bar to meet in many cases.

Gay-marriage supporters in both cases want the Supreme Court to treat their claims with "heightened scrutiny." If they succeed, they would likely win their cases, as several federal courts have already said they cannot find legitimate reasons to limit marriage to one man and one woman and not to same-sex applicants under a standard of heightened scrutiny.

Traditional-marriage supporters, however, counter that "sexual orientation" is not, and cannot be, a discrete, inborn, unchanging status that is deserving of protected legal classification, in the same way that race and national origin receive special legal protection.

They therefore are asking the high court to give the cases so-called rational review, and force the gay-marriage supporters to explain why it is in the best interests of the nation to change, or redefine, marriage in California or for the United States.

Possible court rulings

As for decisions on the laws themselves, with Proposition 8, the high court could:

• Uphold the gay marriage ban as constitutional. This would leave the voter-passed initiative — which cannot be undone by California lawmakers — in place until voters pass another initiative repealing or amending the statute. A Supreme Court ruling upholding Proposition 8 would also send a clear message to other states that they can legally define marriage as the union of one man and one woman, as dozens have already done.

• Strike down Proposition 8, immediately legalizing gay marriage in California. That course also raises the likelihood that constitutional provisions and laws that forbid gay marriage in all states would be invalidated — something traditional-values groups call "the Roe effect," after the 1973 abortion ruling by the high court that instantly struck down anti-abortion laws and statutes across the country.

• Alternatively, the justices could agree on an option that says the smaller subset of states that have legalized civil same-sex unions and domestic partnerships must now call these unions marriages. Such a "nine-state solution" would apply to California, Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.

Regarding the federal DOMA decision, the high court justices could:

• Uphold the section of the law that explicitly defines marriage for purposes of federal law as the union of a man and a woman. This would vindicate congressional lawmakers who believed the federal government, as a sovereign power, could keep the historical, traditional definition of marriage for its programs, and not be forced to comply with one or more states that chose to change their marriage laws to sanction same-sex unions.

• Strike down the provision that refuses to recognize state gay-marriage statues. This would immediately permit legally married gay couples or, in some cases, a surviving spouse in a same-sex marriage to have access to marital and tax benefits at the federal level. For plaintiff Edith Windsor, 83, a New York widow whose case is the plaintiff in the DOMA case, such a ruling would refund her the $363,000 in estate taxes she was required to pay after the death of her spouse, Thea Spyer.

Traditional-marriage groups fear that if DOMA is struck down and the federal government is ordered by the Supreme Court to recognize gay marriage, it will force lawmakers in all states to follow suit and enact laws permitting gay marriage.

• Susan Crabtree contributed to this article, which is based in part on wire service reports.

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