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Gay Marriage Recap: Will Justices Rule On Constitutionality?


This is WEEKEND EDITION from NPR News. I'm Scott Simon and we'll have to wait until June to learn what the U.S. Supreme Court has decided on the two gay marriage cases before it. But this week, the justices heard oral arguments and they gave perhaps some hints of their thinking. One case concerns the constitutionality of California's ban on gay marriage, the other case is a challenge to what's called DOMA, the Defense of Marriage Act.

We're joined now by NPR legal affairs correspondent, Nina Totenberg. Thanks for being with us.

NINA TOTENBERG, BYLINE: I so happy to be here, Scott.

SIMON: And NPR's political editor, Ron Elving. Thank you.

RON ELVING, BYLINE: Good to be with you, Scott.

SIMON: Let me turn to both of you in turn, but Nina first. Do you get a sense the justices have made up their minds on the DOMA case?

TOTENBERG: Well, yes and no. DOMA is the federal law that says we do not recognize same-sex marriages in those states where they're legal, and traditionally the federal government has always deferred to the state definitions of marriage. So here is this law that a majority of the court seemed to think was unconstitutional - for sometimes perhaps different reasons - but unconstitutional because it exceeds the federal government's power. So that's one case.

But if the court says it's unconstitutional for you not to defer to state law in this, then what happens to Proposition 8 where the state does not permit gay marriage? But there's a real question first in the DOMA case as to whether the House of Representatives can on its own come in and defend a law that the executive branch is not defending in court.

And it's sort of interesting, the public silence from the House of Representatives that decided to do this a couple of years ago, that it would defend this law, and now the leadership is nowhere to be found. None of them were present in court. I had a hard time finding a Member of Congress who would defend the law. I did find one finally and there's more than one, but not up in the Republican leadership. They weren't going on tape to do that.

SIMON: Ron Elving, where do the Republicans tend to stand on this?

ELVING: The Republican Party is still the party of opposition to gay marriage, but under the age of 50, in the latest ABC Washington Post poll, Republicans and Republican-leaning independents had slightly moved over to supporting gay marriage. So it's really among older Republicans and among the more social conservatives that the opposition to gay marriage is centered.

SIMON: But of course you can begin to tell some of the prominent Republicans who have changed their position in recent weeks, beginning with Senator Portman of Ohio.

ELVING: Rob Portman of Ohio, sometimes thought of as moderate, sometimes thought of as a conservative, will be thought of as a moderate much more often now because he has stepped out alone among his colleagues in the Senate among the Republicans and supported the concept of gay marriage, citing in his case his own son. And in many other cases among Republicans of a certain age it is the presence in their own family, sometimes immediate family, of a person who has come out to them as gay or has in fact even become involved in a gay marriage, that has changed their minds.

SIMON: We should note though, too, there are other voices, be it Ken Mehlman, who used to be head of the party; Bill O'Reilly was sounding as if, it must be noted on this issue, that he was changing his thinking.

ELVING: In fact, an entire list of Republican luminaries, present and past, officeholders, a lot of people from past Republican administrations, actually filed a brief supporting the overturning of the Proposition 8 in California that banned gay marriage.

SIMON: Nina, let me ask you to give us the benefit of your matchless experience on this. What did you hear in what the justices said in their responses and questions to the Proposition 8 case?

TOTENBERG: Well, it was really kind of fuzzy. Justice Kennedy is very likely to be the deciding vote in this case as he is in the DOMA case. And what was, I think, clear from the arguments, is that the four court conservatives had voted to hear this case. It only takes four votes to grant review of a case, not five. And it was pretty clear to me that Kennedy was kind of ticked off about that, that he really doesn't want to resolve the question of gay marriage as a constitutional right, at least at this point.

And some of the liberal justices seem to agree. So the question is whether they can find a way to punt, to kick the case back to the lower courts, and if that happens or if the court were to uphold Prop. 8, I think it's very likely that you will see the repeal of Prop. 8 on the ballot in 2014 in California.

SIMON: That has to get to this. Ron, what do you foresee in the next round of elections; 2014 the midterms, 2016 the Presidential, to what kind of issue same-sex marriage might be?

ELVING: First it will be an issue in many Republican primaries, where any Republican comes out in favor of gay marriage, there will be a primary against that Republican, be he a member of the Senate or the House, I suspect in governorship races as well. This issue will be joined wherever a Republican wants to differ from the base of the party.

Then in the November elections, well, we already know the Democrats are defending two-thirds of the seats in the Senate. Most of those seats that they're defending are in states that voted for Mitt Romney, so that's where they opposition to gay marriage is centered. And we also know that a number of Democrats who represent some of these red states or swing states have already come out and said we are in support of gay marriage.

In fact, on the Democratic side, all but nine of the senators have come out now in support of gay marriage. That has gone from the day of 1996 when we passed the Defense of Marriage Act, with 85 percent of all the people in the House and Senate. Now we're to the point where opposition to that law is five to one among the majority Democrats in the Senate.

SIMON: Nina, once the court decides this in June, is that the final word or other cases are lined up?

TOTENBERG: Oh, it's never the final word on anything at the Supreme Court. If the court punts on Prop. 8, for example, we'll have the question of whether same-sex marriage as a constitutional right come back at some point, I suspect, but in the meantime there are lots of other wrinkles to these issues that will come before the court.

SIMON: Nina, Ron, thanks very much.

ELVING: Thank you, Scott.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

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