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Supreme Court arguments mark turning point in gay marriage debate

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As justices of the U.S. Supreme Court prepare to hear oral arguments March 26 on gay marriage, Emory constitutional law expert Michael Perry says the debates may hold clues to the various ways the justices might rule.  

The court will first address California's Proposition 8, approved by voters in 2008, which nullified the legality of gay marriage in the state. Challengers argue that the proposition violates a person's 14th Amendment rights.  

"One possibility is a huge change that would affect all of the states [making gay marriage legal in all 50 states]... I don't think the court is ready yet to go that far, but it's hard to predict," says Perry, Robert W. Woodruff Professor of Law.  

Other possibilities include forcing just California to recognize same-sex marriage, which was approved before Proposition 8, or a ruling that says no state has to admit gay marriage as legal, leaving the decision up to the states, Perry says.  

"It is very, very hard [to know how the justices will rule]... as many people say everything turns on Justice [Anthony] Kennedy. So the question of what is the Supreme Court likely to do actually becomes the question 'What is Justice Kennedy likely to do?'" he says.  

What is Justice Kennedy likely to do?  

Although the court is generally described as leaning conservative, with five of the justices appointed by Republican presidents, Justice Kennedy, appointed by President Ronald Reagan, remains a swing vote on issues of discrimination, capital punishment or sexual orientation, Perry says.  

"Kennedy is not a conservative in cases involving capital punishment for the mentally retarded. He ruled with the liberal justices to say that was unconstitutional," Perry says. "Kennedy [also] ruled with the liberal justices to say capital punishment cannot be imposed on anyone when he or she was younger than 18. So Kennedy is liberal with respect to certain issues and more traditionally conservative with respect to other issues."  

Religious freedoms 

Perry believes that any ruling legalizing gay marriage, whether in every state or just in California, needs to include religious accommodations, but says it's far from clear what would happen and how such accommodations would be implemented.  

"The optimal policy is going to be one that does grant significant conscience protections... so that if you are an evangelical Christian opposed to gay marriage and you run a wedding photo business, then you would not be required to participate in a gay wedding and you could not be penalized for failing to serve the public to that extent because of conscience protections," Perry says.  

The Supreme Court is also scheduled to hear arguments on the Defense of Marriage Act, which defines marriage as between a man and woman, Wednesday, March 27.

A decision on both cases is expected at the end of this session in late June or early July.

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