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When Minnesota approves gay marriage, does Supreme Court listen? Maybe. (+video)

Minnesota on Tuesday became the third state in two weeks to legalize gay marriage. According to one exchange at the Supreme Court earlier this year, that's exactly why the justices shouldn't get involved.

By Staff writer / May 14, 2013

Janet Anderson (l.) and Colleen Mlecoch watch the doors of the Minnesota Senate as they wait for the Senate to vote on a bill to legalize gay marriage Monday in St. Paul. Gov. Mark Dayton signed the bill Tuesday.

Craig Lassig/AP

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Washington

In the past two weeks the number of states recognizing same-sex marriages has risen from nine to 12, with new marriage bills signed into law in Rhode Island, Delaware, and – on Tuesday – in Minnesota.

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Public polls in recent weeks confirm that more Americans than ever before accept the idea of same-sex marriage.

And there’s an even bigger potential prize on the horizon as the justices of the US Supreme Court work behind the scenes fashioning decisions expected next month in two major gay rights cases, both involving same-sex marriage.

While it is clear that gay-rights advocates are enjoying significant momentum and historic victories, it is not at all clear how these recent successes will be perceived by the justices at the high court.

Some analysts see the recent events as helpful to the cause of gay rights, while others suggest the rapid progress could convince a swing justice or justices that the intervention of the courts is not necessary.

In one possible scenario, the rising tide of public opinion and state laws favoring equal rights for gay men and lesbians may embolden Justice Anthony Kennedy, a potential swing vote, to join the court’s liberal wing in providing special legal protections for gay Americans like those that cover African-Americans, Latinos, and women.

On the other hand, the recent successes might also convince Justice Kennedy and/or other justices that the political process – and democracy itself – is an engine of change sufficient enough to guarantee the rights of gay Americans.

If gay-rights advocates have enough political clout to win legislative favor in three states within 12 days, perhaps they don’t need the intervention of the highest court in the land, according to this view.

In a key exchange during oral argument at the Supreme Court on March 27, Chief Justice John Roberts agreed that there had been a sea change in American attitudes about gay marriage in recent years.

“I suppose the sea change has a lot to do with the political force and effectiveness of people … supporting your side of the case,” the chief justice told a lawyer challenging the constitutionality of a ban on benefits to same-sex spouses under the federal Defense of Marriage Act.

The lawyer, Roberta Kaplan, rejected the contention that homosexuals in America are politically powerful.

“Really?” Chief Justice Roberts replied. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”

The comment was a reference to a number of members of Congress who announced their support of same-sex marriage on the eve of arguments at the high court.

Ms. Kaplan stood her ground. “No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have,” she said.

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