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november 30, 2012 • 07:56 PM • last update 12:51 PM

High court leaves open if it will take up gay marriage case

Scott Everhart and Jason Welker hold each other before exchanging wedding vows at a comic book retail shop in Manhattan, New York June 20, 2012. Foto: Adrees Latif / Reuters
Scott Everhart and Jason Welker hold each other before exchanging wedding vows at a comic book retail shop in Manhattan, New York June 20, 2012.
Foto: Adrees Latif / Reuters
 

The U.S. Supreme Court's nine justices met in private on Friday to consider whether to enter the legal fray over same-sex marriage but made no announcement about any decision they may have reached.

The high court is considering whether to review five separate challenges to a federal law that prevents married same-sex couples from receiving federal marriage benefits such as Social Security survivor payments and tax exemptions.

It is also considering whether to review California's ban on same-sex marriage, known as Proposition 8, which voters narrowly approved in 2008.

An announcement about whether the court will review the gay marriage cases could come as early as Monday morning.

Thirty-one of the 50 states have passed constitutional amendments banning gay marriage while Washington, D.C., and nine states have legalized it, three of them on Election Day, November 6.

At issue is the 1996 Defense of Marriage Act, or DOMA, which only recognizes marriages between a man and a woman. Gay men and lesbians have challenged a part of the law that prevents them from receiving federal benefits that heterosexual couples receive.

Most courts that have addressed the issue, including federal appeals courts in Boston and New York, have found the law's contested provision violates the equal protection provisions of the U.S. Constitution.

Even in states where same-sex marriage is legal, the couples do not qualify for a host of federal benefits because of DOMA.

If the court takes up the issue and invalidates the law, states could still be free to legalize or deny same-sex marriages on their own terms.

Friday's court conference was one of the Supreme Court's regular weekly sessions at which it considers what new cases to add to the calendar.

The meetings, attended only by the justices, are held in a small conference room adjacent to the chambers of Chief Justice John Roberts.

The justices vote in order of seniority, and while it takes five of the nine for a majority decision in a dispute, it takes only four votes to add a case to the agenda and schedule oral arguments.

If the court does not issue an order on the gay marriage cases on Monday, it could relist the cases for further consideration at its weekly conference next Friday. The justices will sometimes hold particularly complex cases for a future conference if they need more time to figure out what course of action to take.

CALIFORNIA BAN

The court is also considering whether to review a challenge to California's ban on same-sex marriage. The California case, Hollingsworth v. Perry, had sought to establish a constitutional right to marry for gays and lesbians.

The 9th Circuit court in February found the gay marriage ban unconstitutional, but it ruled narrowly in a way that only affected California and not the rest of the country, finding that the state could not take away the right to same-sex marriage after previously allowing it.

No other state that has legalized gay marriage has later banned it.

If the Supreme Court decides to take the case, it could follow the 9th Circuit's decision and also rule narrowly, allowing same-sex marriage only in California but not the rest of the country. Or it could recognize a right to marriage equality.

If the justices decline to take the case, the 9th Circuit's opinion would stand and same-sex marriage would resume in California. That would significantly boost the number of same-sex couples able to marry, given the state's large size.

The Supreme Court on Friday also took no action on an appeal from the state of Arizona which asks the court to revive a state version of DOMA.

The Arizona law, which the 9th Circuit invalidated, eliminated domestic partner healthcare benefits for gay and lesbian state employees. Same-sex couples in Arizona cannot marry under a state constitutional ban passed in 2008.

(Reporting by Terry Baynes in New York; Editing by Howard Goller and Eric Walsh)

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