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Supreme Court Will Rule On Gay Marriage Nationwide


This is WEEKEND EDITION from NPR News. I'm Scott Simon. The U.S. Supreme Court has agreed to review lower court rulings on gay marriage, the historic decision expected by the end of June. Thirty-six states and the District of Columbia have legalized gay marriage, either by referendum, by state legislative action or on orders from a state court or lower federal court. NPR's legal affairs correspondent Nina Totenberg joins us.

Nina, thanks for being with us.

NINA TOTENBERG, BYLINE: My pleasure, Scott.

SIMON: The word historic is, I think, unavoidable here.


SIMON: This has the look and feel of a landmark decision in the making, doesn't it?

TOTENBERG: Well, the Supreme Court of the United States is either going to say gay marriage is legal in the whole country or not, and there's no way to say that isn't historic.

SIMON: Now, the court indicated on Friday that it'll entertain arguments on just two questions. What are they?

TOTENBERG: Well, first, whether the bans on gay marriage are constitutional, and second if they are constitutional, whether those states must nonetheless recognize gay marriages that are legally performed in other states. For example, some of the plaintiffs from Ohio are gay couples, legally married in other states, who've adopted a child from Ohio. But Ohio won't give them a certificate of adoption with both the names of the parents on it. And that in itself has lots of legal consequences for a child in school, in the hospital, for the parents if one parent dies. So those are some of the questions that are coming before the court.

SIMON: What about some of the other people who've been challenging the bans in Ohio, Michigan, Tennessee, Kentucky? Who are they?

TOTENBERG: Well, suffice to say, they're all poster children for the cause, the most upstanding citizens asking the court to ban what they see as unjustified discrimination against them. There are widowers, legally married in other states for instance, who can't get Ohio to list them as a surviving spouse on their mate's death certificate. There are a couple of veterinarians married legally in another state who moved to Tennessee. Now they can't qualify for benefits as a family or a spouse because they're employed at a state university.

SIMON: Nina, looking ahead to the end of June, do you have any idea where the votes may fall on this?

TOTENBERG: Well, Justice Anthony Kennedy has been the linchpin of the course decisions on gay rights. He's written three important decisions changing the status quo to favor gay rights, the last of these less than two years ago. By a 5-4 vote struck down the federal Defense of Marriage Act, which, as you may recall, denied federal tax and other benefits to gay couples who were married in states where those unions were legal. Kennedy's now 78 years old. He's almost certainly the deciding vote in this case too, though I have to say, Scott, it wouldn't surprise me if the Chief Justice, who has dissented before, might decide that he doesn't want to be on what some would surely call the wrong side of history. On the other hand, if the case goes the other way it'll be because of Justice Kennedy's great respect for marriage as a matter for states to deal with, and not for the federal government to deal with.

SIMON: Is there a political angle for all of this? We are, after all, coming up on 2016.

TOTENBERG: Well, I think just about every Republican political pall would tell you privately that if the court rules in favor of gay marriage, it's a gift to the Republican Party because it's no longer an issue that divides the party along generational lines. Instead, the court would be the moving force and the candidates then can move on to other issues.

SIMON: NPR's Nina Totenberg. Thanks so much.

TOTENBERG: You're welcome, Scott. Transcript provided by NPR, Copyright NPR.