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    Supreme Court considers whether to take up gay marriage

    Kat McGuckin of Oaklyn, N.J., held a gay marriage pride flag in front of the Supreme Court on Friday.
    Chip Somodevilla/Getty Images
    Kat McGuckin of Oaklyn, N.J., held a gay marriage pride flag in front of the Supreme Court on Friday.

    WASHINGTON — The running fight over gay marriage is shifting from the ballot box to the Supreme Court.

    Three weeks after voters backed same-sex marriage in three states and defeated a ban in a fourth, the justices met Friday to discuss whether they should deal sooner rather than later with the claim that the Constitution gives people the right to marry regardless of sexual orientation.

    The court also could duck the ultimate question for now and instead focus on a narrower but still important issue: whether Congress can prevent legally married gay Americans from receiving federal benefits otherwise available to married couples.


    There was no announcement about the court’s plans on Friday. The next opportunity for word on gay marriage cases is Monday, although the justices also could put off a decision until their next private meeting in a week’s time. That will be their last meeting until January. Any cases would be argued in March or April.

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    Gay marriage is legal, or will be soon, in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — and the District of Columbia. Federal courts in California struck down the state’s constitutional ban on gay marriage, but that ruling hasn’t taken effect while the issue is being appealed.

    Voters in Maine, Maryland, and Washington approved gay marriage earlier this month.

    But 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent to do so, in May. In Minnesota earlier this month, voters defeated a proposal to place a ban on gay marriage in its constitution.

    The biggest issue the court could decide to confront comes in the dispute over California’s Proposition 8, the constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry. The case could allow the justices to decide whether the US Constitution’s guarantee of equal protection means that the right to marriage cannot be limited to heterosexuals.


    A decision in favor of gay marriage could set a national rule and overturn every state constitutional provision and law banning same-sex marriages. A ruling that upheld California’s ban would be a setback for gay marriage proponents in the nation’s largest state, although it would leave open the state-by-state effort to allow gays and lesbians to marry.

    In striking down Proposition 8, the US Court of Appeals for the Ninth Circuit crafted a narrow ruling that said because gay Californians had been given the right to marry, the state could not later take it away. The ruling studiously avoided sweeping pronouncements.

    But if the high court ends up reviewing the case, both sides agree the larger constitutional issue would be on the table, although the justices would not necessarily have to rule on it.

    Throughout US history, the court has tried to avoid getting too far ahead of public opinion and mores. The high court waited until 1967 to strike down laws against interracial marriage in the 16 states that still had them.

    Some court observers argue that the same caution will prevail in the California case.


    ‘‘What do they have to gain by hearing this case? Either they impose same-sex marriage on the whole country, which would create a political firestorm, or they say there’s no right to same-sex marriage, in which case they are going to be reversed in 20 years and be badly remembered. They’ll be the villains in the historical narrative,’’ said Andrew Koppelman, a professor of law and political science at Northwestern University. Koppelman signed onto a legal brief urging the justices not to hear the California case.

    Yet some opponents of gay marriage say the issue is too important, and California is too large a state, for the court to take a pass.

    ‘‘The question is whether there’s a civil right to redefine marriage, as the California Supreme Court did. We don’t think there is,’’ said Brian Brown, president of the National Organization for Marriage.