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Did Justice Ginsburg inadvertently show how the Supreme Court would rule on same-sex marriages?

By Catholic Online (NEWS CONSORTIUM)
September 21st, 2012
Catholic Online (www.catholic.org)

An answer given by Justice Ruth Bader Ginsburg to a group of students at the University of Colorado in Boulder is being seen by some analysts as an indication on how the high court will rule on same-sex marriages. The Defense of Marriage Act, which bars federal recognition of same-sex unions, is set to go before the justices shortly.

LOS ANGELES, CA (Catholic Online) - Answering questions from students, Ginsburg was queried about the equal protection clause and if the court might consider applying it to sexual orientation. This has been a tried-and-tested argument used in challenges to DOMA, the 1996 federal law that denies various benefits to same-sex couples.

Ginsburg says she couldn't discuss matters that would come to the court, but she added, according to The Associated Press: "I think it's most likely that we will have that issue before the court toward the end of the current term."

Brian Moulton, legal director of Human Rights Campaign, an advocacy group for gay, lesbian, bisexual and transgender rights says that the justices are scheduled to hear five different challenges to DOMA that have been decided in lower courts.

One of those, Windsor v. U.S. out of New York State, is listed for the court's conference on September 24, when they will have a first look at a range of cases seeking to be heard by the justices this year. Ginsburg's comments appear to reinforce what they were hoping for, Moulton told NBC News.

"I think it's quite likely the court will . take one or more of the DOMA cases," Moulton said. "Beyond that, I think we're all just kind of waiting to see what that's going to look like and when that might happen."

Harvard Law School professor Michael Klarman, who clerked for Ginsburg nearly 30 years ago when she was a DC Circuit judge, said he assumed that the Supreme Court was likely to take the case. He says that her comments make "it seems that much more probable.

" . with a bunch of lower court decisions and this being a pretty important issue, I think most people expected that they would grant review. She didn't say they have granted review and obviously she is not supposed to say anything until its public, but she also has inside knowledge. So, I would say this just increases the likelihood that they'll review the DOMA case," Klarman said. Klarman is also the author of the book, "From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage."

Klarman said opposing sides on the bench, such as liberal justices who support same-sex marriage and conservatives who opposed federal intervention into states' rights, potentially could come together on the issue.

"I think it's actually a pretty easy case for them to some extent that's reflected in the lower court decisions, where even judges who were appointed by Republican presidents have signed on to invalidating the statute," he said. "So that's probably a factor in granting review as well . if a bunch of the justices think this is a fairly easy constitutional issue to resolve, it might make them more inclined to grant review."

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