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Gay marriage at the Supreme Court: What are the pivot points?

What precedents and arguments may shape the court as it hears two landmark cases on whether same-sex couples have a constitutional right to marry.

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Two generations ago the mere mention of divorce was food for scandal, and the idea of conceiving a child outside a marriage was unthinkable. Today, roughly half of all marriages end in divorce, and nearly 41 percent of American children are born to an unmarried woman.

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But some analysts question whether it is fair to blame these monumental shifts on same-sex couples who are themselves seeking the stability and monogamy of marriage and family, and who want to share responsibility for raising the next generation of Americans.

From their perspective, they are not seeking to tear down marriage. Like the opponents arrayed against them, they say they want to help strengthen the institution.

Although the Prop. 8 and DOMA cases are potential landmark decisions, it is unclear how the high court may rule. Like many hotly contested cases before the court, legal analysts say the nine-member tribunal is likely to split 4 to 4 among liberal and conservative justices, with Kennedy holding the margin of victory.

"Many of these briefs might well begin with the words: Dear Justice Kennedy," Professor Carpenter says.

Lawyers for same-sex couples want Kennedy to take up where he left off in the Lawrence decision and establish heightened civil rights protections for gay and lesbian Americans like those for African-Americans and women.

In contrast, lawyers supporting traditional marriage are seeking to channel that part of Kennedy that found it necessary to write the disclaimer in the Lawrence decision.

One of their strongest arguments is that it is not the right time for the high court to intervene in the same-sex marriage debate. Gays and lesbians are beginning to achieve political success at the state and national level, but the vast majority of states still maintain the traditional definition of marriage. There is no critical mass of states seeking change.

By the time the high court declared bans on interracial marriage unconstitutional in the Loving case in 1967, all but 16 states had already repealed their anti-miscegenation laws. In 1960, all 50 states had anti-sodomy laws. By 2003 when the high court declared such laws invalid in the Lawrence decision, 37 states had already repealed their sodomy laws. Only 13 still had them on the books.

Contrast that with the current landscape for same-sex marriage. Nine states, and the District of Columbia, recognize it – but 41 do not. "I'm unaware of Justice Kennedy ever having voted to strike down the laws of 41 states," Carpenter says.

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What will prove decisive? No one knows.

In landmark cases, appearances are sometimes important. It won't help the cause of same-sex marriage that the two lead plaintiffs in the Massachusetts case, Hillary and Julie Goodrich, won their battle to marry but remained together for only two years. Their divorce was final in July 2009.

In contrast, consider the experience of Jack Baker and Michael McConnell. They are the gay couple that sued in Minnesota in 1970 for the right to marry – and lost. The case set a longstanding precedent allowing states to deny marriage to same-sex couples.

"That's the first big court decision on gay rights," Carpenter says. "That couple sued to be married in 1970 when nobody imagined that this was a possibility."

It was a time when most states still allowed the firing of gay people from state jobs, when the federal government would not give gay people security clearances, when gays could not serve in the military, and when police were raiding gay bars.

Despite the hostility of society, rejection by lawmakers, and dismissive rulings by judges, Mr. Baker and Mr. McConnell are still together in Minnesota living as a committed couple – 43 years later.

Starkly different perceptions of marriage, coupled with the clash of legal arguments in a country still deeply polarized on the issue of gay rights, make these two of the most watched – and significant – cases before the court in a generation.

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