Supreme Court Readies for Gay Marriage Cases

Changing popular opinion may impact the Court's decision.

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The Supreme Court is set to hear oral arguments in a pair of cases regarding gay marriage, but court observers say the overall impact could be sweeping or limited, depending on how the court chooses to craft its decision.

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One case concerns Proposition 8, a California constitutional amendment approved by voters, which banned gay marriage in the state after it had been legal for a brief time. The other is a challenge to the federal Defense of Marriage Act, which denies federal benefits to spouses in gay marriages and allows states to not recognize same-sex marriages performed in other states if they choose.

In both instances, the court will first have to deal with jurisdictional questions: Do the people bringing or supporting the cases have the legal standing to do so? In the DOMA case, for example, the Republican-controlled House of Representatives helped take up defense of the law after President Barack Obama directed the Justice Department to drop its own.

Obama, like many politicians, recently changed his official stance on gay marriage, saying he "evolved" from a position of opposition to support. Hillary Clinton also recently announced her support for same-sex marriages, as did Sen. Rob Portman, R-Ohio, after sharing that he has a gay son.

[READ: Rob Portman's Gay Marriage Stance a First for GOP Senators]

John Eastman, law professor at Chapman University, says he expects the court will quickly move on from the jurisdictional concerns to the substantive arguments.

"I think the court will get over those jurisdictional fairly quickly because the law seems pretty clear that there's jurisdiction," he says.

Eastman is also the chairman of the National Organization for Marriage, a group that opposes gay marriage and has funded campaigns at the state level to fight measures that would allow it.

Both cases carry the same parallel considerations of the emotional and societal argument for and against gay marriage as well as the legal arguments. Though the court claims to pay no regard to public opinion, there's no doubt the significant shift in public acceptance of gay marriage, even since DOMA was adopted in 1996, will be a factor.

A recent Gallup poll showed that 54 percent of Americans supported federal benefits for gay couples, versus 39 percent who disagreed. In 1996, a Gallup poll showed just 27 percent of people supported gay marriage versus 68 percent who opposed it.

Even the brief that lawmakers filed with the court in support of DOMA, despite the fact that many of them had voted for it, noted the sweeping change in times.

"In short, it was a different world for gay men and lesbians, and many were understandably reluctant to speak openly about themselves or their families," said the brief, signed by more than 200 sitting congressional lawmakers.

"A number of members, like the constituents we serve, did not personally know many (if any) people who were openly gay and majority attitudes toward that minority group were often viscerally fearful and negative."

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Ultimately, the lawmakers say the law Congress passed in 1996 is unconstitutional.

"None of the arguments advanced in its defense is sufficient," they said.

Eastman says predicting what the court will do is difficult, but Justice Anthony Kennedy, a libertarian conservative, is likely the key.

"All eyes are on Justice Kennedy and he's obviously written the two major gay-rights decisions in the past decade and a half and that means that people rightly think that he's kind of open to taking this step, but he has studiously avoided taking that step in prior cases," he says.

John Roberts, who played a key role in the court ruling earlier this year to uphold the key elements of the controversial health care law known as Obamacare, could reprise that role again.

Oral arguments are scheduled for Tuesday and Wednesday and a ruling is expected sometime in June.

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