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Did Supreme Court justice tip hand on gay marriage?

Elise Amendola / AP file

Keegan O'Brien of Worcester, Mass., leads chants as members of the LGBT community protest the Defense of Marriage Act outside a Democratic National Committee fundraiser in Boston on June 23, 2009. A battle over the federal law appears headed for the Supreme Court after an appeals court ruled on May 31, 2012, that denying benefits to married gay couples is unconstitutional.

When Justice Ruth Bader Ginsburg told a group of students that the Supreme Court would probably hear challenges during its upcoming term to the Defense of Marriage Act, which bars federal recognition of same-sex marriages, she confirmed what many observers were already thinking: The nation’s high court is poised to weigh in on the battle over same-sex marriage.

While answering questions from students at the University of Colorado in Boulder, Ginsburg was asked Wednesday about the equal protection clause and if the court might consider applying it to sexual orientation, an argument used in challenges to DOMA, the 1996 federal law that denies various benefits to same-sex couples.


Though she said she couldn’t discuss matters that would come to the court, she also said, 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.”

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

But just one of those, Windsor v. U.S. out of New York state, is listed for the court’s conference on Sept. 24, when they will have a first look at a range of cases seeking to be heard by the justices this year. They may hold that case until they have all of the DOMA challenges in front of them to consider, but Ginsburg’s comments reinforced 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.”

Michael Klarman, a Harvard Law School professor 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, so her comments make “it seem that much more probable.”

AP file

Supreme Court Justice Ruth Bader Ginsburg participates in a panel discussion, on Aug. 3, during the American Bar Association's annual meeting in Chicago.

“ … 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 it’s public, but she also has inside knowledge. So, I would say this just increases the likelihood that they’ll review the DOMA case,” said Klarman, author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage.”

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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.”

He noted, however, that the court could issue a narrow ruling that kicks the issue back to the states or a broad one that would have big implications for state laws and constitutional amendments.

Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage, said he was confident his side would win the court argument.

“It’s so far out to claim that somehow the states can force the federal government to redefine marriage. That’s so far out legally, I don’t see the Supreme Court siding with these decisions of lower courts,” he said.

DOMA was passed in 1996, when it appeared Hawaii would legalize same-sex marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004, and followed by Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland, Washington state plus the District of Columbia.

The Maryland and Washington laws are not yet in effect and are subject to referendums in the November ballot. Maine is also holding a vote on whether to allow same-sex marriage, while voters in Minnesota will decide whether to add a same-sex marriage ban to their state constitution.

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