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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.


Upper left: Paul Melchert (l.) is interrupted by his son as he and his partner James Zimerman support a bill to legalize gay marriage in Minnesota. Upper right: In early 2012, two men protest against a gay marriage bill then working its way through the Maryland legislature in Annapolis.

Jim Mone/Patrick Semansky/AP

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It has been 10 years since the US Supreme Court last issued a landmark ruling expanding gay rights in America.

It came in a 2003 case called Lawrence v. Texas. In striking down a Texas anti-sodomy law, the high court declared that intimate sexual conduct between consenting adults was off limits to government regulation.

The author of that decision, Justice Anthony Kennedy, was well aware that he'd just delivered an extraordinary victory to gay rights advocates. Nonetheless, he included an unusual disclaimer near the conclusion of his opinion.

Justice Kennedy said the court's decision that day would have no wider application in the looming showdown over same-sex marriage.

"Do not believe it," conservative Justice Antonin Scalia roared in dissent.

"Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned," he wrote.

Now, a decade later, the nation is about to find out who was right – Kennedy in his limiting disclaimer or Justice Scalia in his dire warning.

On March 26 and 27, the US Supreme Court is set to hear two potential landmark gay rights cases, both dealing with the issue of same-sex marriage.

This marks the first time in 40 years that the high court is being asked to fundamentally redefine what marriage is in the United States. In the process, the high court is injecting itself squarely into one of the most divisive social issues of the past quarter century.

The outcome could affect hundreds of millions of dollars in federal marriage benefits currently limited to heterosexual spouses.

As in 2003, gay rights advocates are again hoping to win the potentially decisive swing vote of Kennedy. They are also hoping that the substance of Scalia's impassioned constitutional analysis in his dissent back in 2003 holds true in 2013.


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