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Supreme Court Eyes Gay Marriage Ban

— The Supreme Court is raising the stakes in the same-sex marriage debate as it considers taking up the issue for the first time, testing momentum built by advocates through electoral wins in four states this month.

The justices are scheduled to confer privately tomorrow on 10 pending appeals, including clashes over the Defense of Marriage Act, which blocks gays from receiving federal marriage benefits, and a California ballot measure that outlawed same-sex nuptials there in 2008. The high court may say as early as that afternoon which cases it will consider.

Supreme Court involvement would come as gay marriage has seen a surge in public support since 1996, when the Defense of Marriage Act was approved 342-67 in the House of Representatives and 85-14 in the Senate and signed by President Bill Clinton. By Jan. 1, same-sex couples will be able to wed in nine states and the District of Columbia, and President Barack Obama has said he backs that right.

“Even if the court avoids ruling on the big question - whether gays and lesbians are entitled to marry - these cases will still be hugely important,” said Adam Winkler, a constitutional law professor at the University of California at Los Angeles School of Law. “They will establish standards and rules that will impact future gay-rights cases.”

Previous Supreme Court cases provide few hints as to how the court will rule. Although Justice Anthony Kennedy, who may cast the deciding vote, backed gay rights in 1996 and 2003 rulings, neither case involved marriage.

Advocates on both sides say the court is all but certain to review the Defense of Marriage Act, a law that two federal appeals courts have said is unconstitutional. Less clear is whether the justices will take up the potentially more sweeping fight over California’s Proposition 8.

The challenge to that ballot measure is being pressed by Theodore Olson and David Boies, the lawyers who faced off against each other at the Supreme Court in the Bush v. Gore case that resolved the 2000 presidential election deadlock. They filed the suit with an eye toward winning a Supreme Court ruling establishing same-sex marriage as a constitutional right.

The California case “would be an opportunity for the court to go on the record for the first time” on that issue, said Jane Schacter, a Stanford Law School professor who teaches constitutional and sexual-orientation law. The question is “whether they want to engage with the underlying issue of whether same-sex couples have a right to marry.”