Will Supreme Court decide if gay marriage is constitutional? (+video)

The Supreme Court meets Friday to decide whether it should take up a case on same-sex marriage, and the claim that the Constitution gives people the right to marry regardless of sexual orientation.

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"What do they have to gain by hearing this case? Either they impose same sex marriage on the whole country, which would create a political firestorm, or they say there's no right to same-sex marriage, in which case they are going to be reversed in 20 years and be badly remembered. They'll be the villains in the historical narrative," said Andrew Koppelman, a professor of law and political science at Northwestern University. Koppelman signed onto a legal brief urging the justices not to hear the California case.

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Yet some opponents of gay marriage say the issue is too important, and California is too large a state, for the court to take a pass.

"The question is whether there's a civil right to redefine marriage, as the California Supreme Court did. We don't think there is," said Brian Brown, president of the National Organization for Marriage.

Regardless of the decision on hearing the California case, there is widespread agreement that the justices will agree to take up a challenge to a part of the federal Defense of Marriage Act.

The law was passed in 1996 by overwhelming bipartisan majorities in the House and Senate and signed by President Bill Clinton. It defines marriage for all purposes under federal law as between a man and a woman and has been used to justify excluding gay couples from a wide range of benefits that are available to heterosexual couples.

Four federal district courts and two courts of appeal have overturned the provision in various cases on grounds that it unfairly deprives same-sex couples of federal benefits. The justices almost always will hear a case in which a federal law has been struck down.

The Obama administration broke with its predecessors when it announced last year that it no longer would defend the provision. President Barack Obama went further when he endorsed gay marriage in May.

Republicans in the House of Representatives stepped in to take up the defense of the law in court.

Paul Clement, the Washington lawyer representing the House, said the law was intended to make sure that federal benefits would be allocated uniformly, no matter where people live.

"DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage," Clement said in court papers.

The court has several cases to choose from, including that of 83-year-old Edith Windsor of New York. Windsor faces $363,000 in federal estate taxes after the death of her partner of 44 years in 2009. In two other cases, same-sex couples and surviving spouses of gay marriages in Connecticut, Massachusetts, New Hampshire and Vermont are seeking a range of federal benefits, including Social Security and private pension survivor payments, access to federal employee health insurance and the right to file a joint federal income tax return.

In the only instance in which a gay couple already is receiving federal benefits, federal court employee Karen Golinski in San Francisco has been allowed, under a court order, to add her wife to her health insurance coverage. That could be reversed if the Supreme Court upholds the marriage law provision.

No matter which case the court chooses, the same issue will be front and center — whether legally married gay Americans can be kept from the range of benefits that are otherwise extended to married couples.

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