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Analysis: Supreme Court energizes gay rights even as it resists

by
Security guards walk the steps of the Supreme Court in Washington, October 1, 2010. REUTERS/Larry Downing
Security guards walk the steps of the Supreme Court in Washington, October 1, 2010. REUTERS/Larry Downing

By Joan Biskupic

WASHINGTON (Reuters) - After two days of Supreme Court arguments over same-sex marriage, the United States may be left with this irony: While the high court is not likely to alter the constitutional landscape for gays, the justices nevertheless have provided a rallying point for the gay-rights cause.

Three major legal outcomes appeared likely as the justices on Wednesday ended the second dramatic day of arguments in the most closely watched dispute of their current term:

* The court would not rule that gay people need special constitutional protection from discrimination.

* The court would not declare a nationwide right to same-sex marriage.

* At the same time, a majority would rule narrowly that the federal government must provide married same-sex couples the same benefits it gives their heterosexual counterparts.

Yet just as the nine black-robed justices made clear that they did not wish to play a leading role in the national conversation about same-sex marriage, they showed they could nonetheless raise its volume. Simply by agreeing to hear the two disputes - one over California's ban on same-sex marriage, the other over the federal law denying benefits to same-sex couples - the justices energized the debate.

Numerous public figures including former President Bill Clinton, who in 1996 signed the law forbidding same-sex couples from obtaining federal benefits, and prominent groups including the American Academy of Pediatrics in recent weeks came out vigorously in support of same-sex marriage and gay civil rights.

Individual members of Congress - Democrats and Republicans - suddenly voiced new support for gay marriage.

Perhaps most dramatically, Senator Rob Portman of Ohio, considered a possible future Republican presidential contender, earlier this month announced he was reversing his opposition to such same-sex marriage, citing the fact that his son two years earlier had told him he was gay.

Opponents of gay marriage have not witnessed any similar high-profile testimonials from people who were switching to their side. Recent opinion polls, taken in association with the Supreme Court's decision to take up the gay-marriage cases, have documented a surge in public support for same-sex unions.

The new cases also pushed the Obama administration to break new legal ground.

President Barack Obama had personally endorsed gay marriage but he had long asserted that same-sex marriage was a matter for the states to handle. At the last minute, however, his administration decided to enter the California dispute and argue that federal guarantees of constitutional equality forbid states from limiting marriage to heterosexuals.

The administration also contended that gays deserve extra constitutional protection from bias, as the Supreme Court has afforded women fighting sex discrimination.

Yet as much as the justices effectively propelled others to take a stand, they showed by their own comments and questions from the bench this week that they do not intend to be at the vanguard.

The lawyers who appeared on Tuesday and Wednesday were passionate in their presentations, yet none seemed to seize the justices and generate equal fervor.

To be sure, there were moments of excitement, including some sharp exchanges between lawyers and individual justices such as when Justice Elena Kagan challenged an attorney's assertion that government's overriding interest in marriage relates to procreation and childbearing.

'UNCHARTED WATERS'

There was also the suspense of what swing-vote Justice Anthony Kennedy might say. Kennedy sent conflicting messages at times, expressing concern about the children of gay parents who cannot marry but then suggesting the justices should be wise to stay out of "uncharted waters" on the issue.

There were moments of tedium, too, as the justices wrestled with procedural issues that could prevent them from deciding the merits of either case.

Such hurdles would likely prevent any decision on California's Proposition 8, the 2008 ballot initiative that defines marriage as only between a man and a woman. A majority of the justices signaled they might not reach the merits, most likely because California state officials have declined to defend the law and Proposition 8 backers may lack "legal standing" in the case.

A court majority most certainly would not conclude - as the challengers to Proposition 8 argued on Tuesday - that all 50 U.S. states must allow same-sex marriage. Currently nine states permit such marriages, along with Washington, D.C.

Nothing that emerged in oral arguments on Wednesday over a provision of the 1996 Defense of Marriage Act (DOMA) would suggest that the justices had any second thoughts about delving into the larger issues of gay marriage. In fact, their comments reinforced the notion that a majority on the generally conservative court is not ready to carve out new rights for gays.

The Obama administration and other challengers to DOMA had urged the court to declare that government rules tied to sexual orientation deserve "heightened" scrutiny, meaning that the government needs an exceedingly persuasive justification for the regulation.

If the court were to adopt such a level of constitutional protection for gays, as it has in the gender-discrimination context, bans on same-sex marriage would be legally undermined. But that proposition for tougher judicial scrutiny in gay-bias cases gained no traction at the Supreme Court.

Chief Justice John Roberts suggested that the national activity surrounding this week's cases might have demonstrated that gays are, in fact, a political force in no need of special protection.

"As far as I can tell, political figures are falling over themselves to endorse your side of the case," Roberts told lawyer Roberta Kaplan, who was representing a New York woman denied a federal estate-tax exemption because her spouse was another woman, not a man.

Roberts may have been referring to national figures including Portman whose endorsement of gay marriage coincided with the court's consideration of the matter.

In the same vein, a record number of "friend of the court" briefs were submitted in the paired cases, most favoring gay rights. In yet another unusual move, marking one of corporate America's most high-profile efforts on same-sex marriage, close to 300 businesses urged the court to strike down the DOMA restriction. (Thomson Reuters Corp, which owns Reuters, was among them.)

Outside the marble-columned Supreme Court building, demonstrators rallying for gay marriage dominated the scene.

So no matter how this court ultimately rules - a decision is expected by late June - it seems clear that the justices' mere involvement was a boost to the gay-rights cause, at least in the court of public opinion.

(Reporting by Joan Biskupic; Editing by Eric Effron and Will Dunham)

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