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Analysis: Marriage votes could sway Supreme Court

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Reuters
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November 9, 2012

After victories for marriage initiatives in Maryland, Maine and Washington state this week, the two sides in the national debate over marriage equality are positioning for advantage as the issue moves toward the U.S. Supreme Court.

The votes came two weeks before the Supreme Court justices are to meet, on November 20, to decide whether to review six gay rights cases that have been brought before the court.

Four of the cases test the constitutionality of the Defense of Marriage Act, or DOMA, which bars the federal government from recognizing marriages for same-sex couples performed in states or foreign countries where they are allowed. Another seeks approval for Proposition 8, a 2008 measure that outlawed same-sex marriage in California. The sixth case concerns gay rights in Arizona.

A critical question for the Supreme Court is how much political clout gays and lesbians have - and that’s where Tuesday’s votes could come into play.

Under the legal analysis that applies to equal protection challenges, laws that discriminate against politically powerless groups receive greater scrutiny from the court. Some of the lower courts in the current cases found that gays and lesbians are a disadvantaged group that qualifies for more rigorous protection.

Opponents of marriage equality are now arguing that Tuesday’s voting results, which brought to nine the number of states that allow same-sex couples to wed, show that gays and lesbians have plenty of political power.