Obama asks Supreme Court to review appointments ruling

By Lawrence Hurley

WASHINGTON (Reuters) - Setting the stage for a constitutional showdown, the Obama administration on Thursday urged the Supreme Court to rule that presidents have broad authority to make certain appointments without Senate approval.

If the nine justices agree to hear the dispute over appointments President Barack Obama made to the National Labor Relations Board last year, it will be one of the biggest issues before the court in its next term, which will begin in October and end in June 2014.

In January the U.S. Court of Appeals for the District of Columbia Circuit ruled that three appointments to the panel, which normally has five members, were invalid.

The appeals court agreed with Noel Canning, the bottling company that challenged Obama's move, in finding that the president did not have the authority to make the NLRB appointments because the Senate was not technically in recess at the time.

The U.S. Constitution allows the president to make appointments when the Senate is in recess. Such appointments expire at the end of the congressional session.

Backed by the U.S. Chamber of Commerce, Noel Canning argued that an NLRB ruling against it was invalid because of the appointments, which meant the board lacked a quorum.

Obama made his NLRB appointments on January 4, 2012, when the Senate was in session but not conducting business. The congressional session began on January 3, according to the Senate website.

In the brief filed on Thursday, Solicitor General Donald Verrilli defended the recess appointment powers of the president, disputing the court's conclusion that it can only be used in the period between formal sessions of the Senate.

Presidents from both parties have used their recess appointment authority to make appointments when the Senate is not conducting business.

If the appeals court ruling was left to stand, it would "dramatically curtail" the president's authority, Verrilli said.

In addition to limiting presidential power, the ruling meant that the NLRB did not have the required quorum to make decisions, casting doubt on all its actions and rulings since Obama made the appointments.

The ruling "threatens a significant disruption of the federal government's operations," Verrilli wrote.

The high court will decide whether to hear the case after lawyers for Noel Canning file a response, which is due within 30 days.

(Reporting by Lawrence Hurley and Amanda Becker; Editing by Howard Goller and Xavier Briand)

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Supreme Court declines to hear gun rights case

WASHINGTON (Reuters) - Staying out of the raging national debate over guns, the Supreme Court on Monday declined to weigh in on whether gun owners have a constitutional right to carry handguns outside the home.

The court decided not to hear a challenge to a New York state law that requires those who want to carry a concealed handgun to show they have a special reason before they can get a license.

(Reporting by Lawrence Hurley; Editing by Howard Goller and Christopher Wilson)

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Rush Limbaugh: Regardless of Supreme Court Ruling Gay Marriage Is 'Inevitable'

Limbaugh

In his radio show today, conservative talk show host Rush Limbaugh said defenders of traditional marriage have lost the battle, even though the Supreme Court won't hand down its decisions for another few months.

"I don't care what the Supreme Court does, this is now inevitable," Limbaugh said, "and it's inevitable because we lost the language on this."

Limbaugh took issue with the idea that the word marriage was already applied to gay couples. Therefore, he asserted, modifiers like "hetero" or "opposite-sex" are now at times added to denote a union between a man and a woman.

"I maintain to you that we lost the issue when we started allowing the word 'marriage' to be bastardized and redefined by simply adding words to it - because marriage is one thing, and it was not established on the basis of discrimination. It wasn't established on the basis of denying people anything," the radio host said. "Marriage is not a tradition that a bunch of people concocted to be mean to other people with. But we allowed the left to have people believe that it was structured that way."

On Wednesday, he made a similar prediction, saying that gay marriage would soon become legal "

Earlier this year, Limbaugh compared homosexuality to pedophilia.

Today, he claimed discrimination against gay couples "is not an issue."

"No one sensible is against giving homosexuals the rights of contract or inheritance or hospital visits. There's nobody that wants to deny them that. The issue has always been denying them a status that they can't have, by definition. By definition - solely, by definition - same-sex people cannot be married. So instead of maintaining that and holding fast to that, we allowed the argument to be made that the definition needed to change, on the basis that we're dealing with something discriminatory, bigoted, and all of these mystical things that it's not and never has been."

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Analysis: Supreme Court energizes gay rights even as it resists

By Joan Biskupic

WASHINGTON (Reuters) - After two days of Supreme Court arguments over same-sex marriage, the United States may be left with this irony: While the high court is not likely to alter the constitutional landscape for gays, the justices nevertheless have provided a rallying point for the gay-rights cause.

Three major legal outcomes appeared likely as the justices on Wednesday ended the second dramatic day of arguments in the most closely watched dispute of their current term:

* The court would not rule that gay people need special constitutional protection from discrimination.

* The court would not declare a nationwide right to same-sex marriage.

* At the same time, a majority would rule narrowly that the federal government must provide married same-sex couples the same benefits it gives their heterosexual counterparts.

Yet just as the nine black-robed justices made clear that they did not wish to play a leading role in the national conversation about same-sex marriage, they showed they could nonetheless raise its volume. Simply by agreeing to hear the two disputes - one over California's ban on same-sex marriage, the other over the federal law denying benefits to same-sex couples - the justices energized the debate.

Numerous public figures including former President Bill Clinton, who in 1996 signed the law forbidding same-sex couples from obtaining federal benefits, and prominent groups including the American Academy of Pediatrics in recent weeks came out vigorously in support of same-sex marriage and gay civil rights.

Individual members of Congress - Democrats and Republicans - suddenly voiced new support for gay marriage.

Perhaps most dramatically, Senator Rob Portman of Ohio, considered a possible future Republican presidential contender, earlier this month announced he was reversing his opposition to such same-sex marriage, citing the fact that his son two years earlier had told him he was gay.

Opponents of gay marriage have not witnessed any similar high-profile testimonials from people who were switching to their side. Recent opinion polls, taken in association with the Supreme Court's decision to take up the gay-marriage cases, have documented a surge in public support for same-sex unions.

The new cases also pushed the Obama administration to break new legal ground.

President Barack Obama had personally endorsed gay marriage but he had long asserted that same-sex marriage was a matter for the states to handle. At the last minute, however, his administration decided to enter the California dispute and argue that federal guarantees of constitutional equality forbid states from limiting marriage to heterosexuals.

The administration also contended that gays deserve extra constitutional protection from bias, as the Supreme Court has afforded women fighting sex discrimination.

Yet as much as the justices effectively propelled others to take a stand, they showed by their own comments and questions from the bench this week that they do not intend to be at the vanguard.

The lawyers who appeared on Tuesday and Wednesday were passionate in their presentations, yet none seemed to seize the justices and generate equal fervor.

To be sure, there were moments of excitement, including some sharp exchanges between lawyers and individual justices such as when Justice Elena Kagan challenged an attorney's assertion that government's overriding interest in marriage relates to procreation and childbearing.

'UNCHARTED WATERS'

There was also the suspense of what swing-vote Justice Anthony Kennedy might say. Kennedy sent conflicting messages at times, expressing concern about the children of gay parents who cannot marry but then suggesting the justices should be wise to stay out of "uncharted waters" on the issue.

There were moments of tedium, too, as the justices wrestled with procedural issues that could prevent them from deciding the merits of either case.

Such hurdles would likely prevent any decision on California's Proposition 8, the 2008 ballot initiative that defines marriage as only between a man and a woman. A majority of the justices signaled they might not reach the merits, most likely because California state officials have declined to defend the law and Proposition 8 backers may lack "legal standing" in the case.

A court majority most certainly would not conclude - as the challengers to Proposition 8 argued on Tuesday - that all 50 U.S. states must allow same-sex marriage. Currently nine states permit such marriages, along with Washington, D.C.

Nothing that emerged in oral arguments on Wednesday over a provision of the 1996 Defense of Marriage Act (DOMA) would suggest that the justices had any second thoughts about delving into the larger issues of gay marriage. In fact, their comments reinforced the notion that a majority on the generally conservative court is not ready to carve out new rights for gays.

The Obama administration and other challengers to DOMA had urged the court to declare that government rules tied to sexual orientation deserve "heightened" scrutiny, meaning that the government needs an exceedingly persuasive justification for the regulation.

If the court were to adopt such a level of constitutional protection for gays, as it has in the gender-discrimination context, bans on same-sex marriage would be legally undermined. But that proposition for tougher judicial scrutiny in gay-bias cases gained no traction at the Supreme Court.

Chief Justice John Roberts suggested that the national activity surrounding this week's cases might have demonstrated that gays are, in fact, a political force in no need of special protection.

"As far as I can tell, political figures are falling over themselves to endorse your side of the case," Roberts told lawyer Roberta Kaplan, who was representing a New York woman denied a federal estate-tax exemption because her spouse was another woman, not a man.

Roberts may have been referring to national figures including Portman whose endorsement of gay marriage coincided with the court's consideration of the matter.

In the same vein, a record number of "friend of the court" briefs were submitted in the paired cases, most favoring gay rights. In yet another unusual move, marking one of corporate America's most high-profile efforts on same-sex marriage, close to 300 businesses urged the court to strike down the DOMA restriction. (Thomson Reuters Corp, which owns Reuters, was among them.)

Outside the marble-columned Supreme Court building, demonstrators rallying for gay marriage dominated the scene.

So no matter how this court ultimately rules - a decision is expected by late June - it seems clear that the justices' mere involvement was a boost to the gay-rights cause, at least in the court of public opinion.

(Reporting by Joan Biskupic; Editing by Eric Effron and Will Dunham)

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Supreme Court indicates it may strike down marriage law

By Lawrence Hurley

WASHINGTON (Reuters) - For the second day running, the Supreme Court on Wednesday will confront the issue of gay marriage, hearing arguments on a U.S. law that denies federal benefits to legally married same-sex couples.

Almost two hours of oral argument before the court will focus on the Defense of Marriage Act (DOMA), just a day after the nine justices considered the constitutionality of California's Proposition 8 ban on gay marriage.

Both cases come before the court as polls show growing support among Americans for gay marriage but division among the 50 states. Nine states recognize it; 30 states have constitutional amendments banning it and others are in-between.

Rulings in both cases are expected by the end of June.

DOMA limits the definition of marriage as between a man and a woman. It permits benefits such as Social Security survivor payments and federal tax deductions only for married, opposite-sex couples, not for legally married same-sex couples.

President Bill Clinton signed DOMA into law in 1996 after it passed Congress with only 81 of 535 lawmakers opposing it. Clinton, a Democrat, earlier this month said that times have changed since then and called for the law to be overturned.

In the California case argued on Tuesday, the justices seemed wary of endorsing a broad right for gay and lesbian couples to marry, as gay rights advocates had wanted. As a result, the Proposition 8 case is less likely to influence how the court approaches DOMA, which presents a narrower question.

The slightly lower-profile case being argued Wednesday focuses on whether Edith Windsor, who was married to a woman, should get the federal estate tax deduction available to heterosexuals when their spouses pass away.

Windsor's marriage to Thea Spyer was recognized under New York law, but not under DOMA. When Spyer died in 2009, Windsor was forced to pay federal estate tax because the federal government would not recognize her marriage. She sued the government, seeking a $363,000 tax refund.

Windsor's lawyers say the federal government has no role in defining marriage, which is traditionally left to states.

"It's the states that marry people," said James Esseks, an American Civil Liberties Union lawyer who is part of Windsor's legal team. "The federal government doesn't do that."

The roughly 133,000 gay couples nationwide, married in one of the nine states where it is legal, are not recognized as married by the federal government, Windsor's supporters say.

Various groups are calling for DOMA to be struck down, such as the Business Coalition for DOMA Repeal, whose members include Marriott International Inc, Aetna Inc, eBay Inc, and Thomson Reuters Corp, the corporate parent of the Reuters news agency.

OBAMA TURNS BACK ON DOMA

The Obama administration has agreed with Windsor that the section of law that defines marriage violates the U.S. Constitution's guarantee of equal protection under the law. The Justice Department has therefore declined to defend the statute, as it normally would when a federal statute is challenged.

That has left a legal group acting on behalf of the Republican-dominated U.S. House of Representatives, known as the Bipartisan Legal Advisory Group, or BLAG, as the party defending the federal law. Its lawyer, Paul Clement, will argue that there are several reasons to support Congress' decision to enact DOMA.

Noting the strong bipartisan support the law attracted when it was first enacted, Clement said in court papers that a move to strike it down as unconstitutional "would be wholly unprecedented."

Before the court reaches that bigger question, preliminary matters could prevent the court deciding the case. One is whether BLAG has legal standing.

If such a procedural issue prevents the court from deciding the case on the merits, Windsor would win her refund. Yet DOMA would remain on the books in parts of the country where courts have not ruled on it. Further litigation would likely ensue.

(Editing by Kevin Drawbaugh and Cynthia Osterman)

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Supreme Court wary of broad gay marriage ruling

By Lawrence Hurley

WASHINGTON (Reuters) - America's top court takes up the delicate and divisive issue of gay marriage on Tuesday when the nine Supreme Court justices consider the legality of a California ballot initiative that limits marriage to opposite-sex couples.

Tuesday will be the first of two days of oral arguments on the issue. On Wednesday, the court will consider the 1996 federal Defense of Marriage Act (DOMA), which limits the definition of marriage to opposite-sex couples.

Rulings in both cases are expected by the end of June.

In what is scheduled to be about three hours of deliberations with lawyers over the two days, the justices will have their say on what gay activists see as a key civil rights issue reminiscent of famous Supreme Court cases of the past, including Loving v. Virginia, a 1967 case in which the court invalidated bans on interracial marriage.

The cases come before the high court at a time when more states have legalized gay marriage. Last year three more - Maryland, Maine and Washington - did so, bringing the total to nine plus the District of Columbia.

"Never before in our history has a major civil rights issue landed on the doorstep of the Supreme Court with this wave of public support," said Theodore Boutrous, a lawyer for opponents of the California initiative, which is known as Proposition 8.

Strong opposition to gay marriage still exists, however, both among Republicans in Congress and in many states across the nation. A total of 30 states, including California, have constitutional amendments that ban gay marriage. Nine states, including California, recognize civil unions or domestic partnerships among same-sex couples.

Advocates for both sides plan to demonstrate outside the multi-columned Washington courthouse. Those who plan to attend include Chief Justice John Roberts' cousin Jean Podrasky, a lesbian from California who would like to marry her partner.

"There's no fundamental right to same sex marriage in the U.S. Constitution," said Austin Nimocks, a member of the legal team arguing in support of the California law.

Some legal experts think that with the issue unsettled in the states, a majority of the justices might not be inclined to make any sweeping pronouncements on the issue as the democratic process plays out.

MULTIPLE OPTIONS

There are various ways in which they could do that as the Proposition 8 case presents the justices with multiple options.

The justices could proclaim that gay marriage bans are constitutionally unsound. They could uphold Proposition 8 as a law with a legitimate purpose that was approved by a majority of voters in California. They could also plot a middle path by striking down the law without making any broad pronouncements about whether gay marriage bans in other states that have them should be struck down.

Another way the court could rule might be viewed as an anticlimax of sorts: The justices could simply decide that it cannot rule on the merits because of the procedural complexities that brought the case to the high court.

The state of California declined to support Proposition 8 when the plaintiffs filed suit in 2009 in a federal district court in San Francisco, meaning there was no party defending the law until its proponents entered the case. The federal judge struck the law down, a ruling that was upheld by the San Francisco-based 9th U.S. Circuit Court of Appeals.

A Supreme Court decision concluding that the law's backers do not have legal standing to defend the law would wipe out the appeals court decision, but leave the district court decision that struck down Proposition 8 on the books.

The way the justices rule could depend in large part on the likely swing voter, Justice Anthony Kennedy. Although a conservative appointed by President Ronald Reagan, Kennedy has in the past authored two opinions that expanded gay rights.

Lawyers representing two same-sex couples in California who want to marry are hoping the justices will go big and are making the most sweeping arguments.

The counsel for Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo will argue that under the U.S. Constitution's equal protection guarantee, there is a fundamental right for people to marry someone of the same sex.

Kris Perry, who has raised four children with her partner, Sandy Stier, was hopeful and optimistic.

"We have been waiting for a long time to get married," she said last week. "We are very excited to have the end in sight."

(To follow oral arguments both days, visit the Reuters live blog at http://reut.rs/scotus1)

(Reporting by Lawrence Hurley; Editing by Howard Goller and David Brunnstrom)

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Analysis: Supreme Court seems poised to avoid same-sex marriage tide

By Joan Biskupic

WASHINGTON (Reuters) - For nearly four years, proponents of same-sex marriage have been strategically building a test case aimed at convincing the conservative-leaning Supreme Court to declare that gay marriage is a constitutional right. The advocates felt they were ready.

But on Tuesday, after an intense, wide-ranging hearing, it appeared the justices were not.

Over the course of the 80-minute session, it seemed that for the array of gay rights supporters across the country, neither their greatest hopes nor worst fears would be realized.

A majority of the justices suggested by their comments and questions that they were not prepared to rule on whether a fundamental right exists for gays and lesbians to marry. Some justices even suggested that the specific case before them, testing the validity of a 2008 California ballot initiative that defined marriage as only between a man and woman, might not be resolved on the merits.

The justices return to the bench on Wednesday for the narrower question of whether the federal government may deny benefits to married same-sex couples that are allowed their opposite-sex counterparts.

The court has several options on how it might resolve that case, from a finding that the Republican-dominated congressional group defending the law lacks "legal standing," resulting in dismissal, to a decision striking down the provision and robustly declaring that all laws tied to sexual orientation deserve tough judicial scrutiny.

That latter stance could eventually pave the way for gay marriage laws nationwide, well beyond the nine states and District of Columbia that now allow it. But from the tone of arguments on Tuesday, a majority would likely resist that route.

Justices across the ideological spectrum suggested they wanted to tread a cautious path in the cases that have become the most closely watched of the term.

The white marble and crimson velvet courtroom was crowded with nearly 400 spectators, some of whom had waited since last Thursday, in snow and rain, for seats. The paired cases have drawn a record number of "friend of the court" briefs and become the occasion for near daily declarations in support of gay marriage from public figures and prominent organizations.

'UNCHARTED WATERS'

Yet the justices do not seem ready for a role on centerstage in the matter. Justice Sonia Sotomayor, a liberal, questioned whether the issue should percolate a little longer in the states. Justice Samuel Alito, a conservative, asserted that the notion of same-sex marriage was newer than today's ubiquitous cellphones and perhaps not ready for judicial intervention. And Justice Anthony Kennedy, the usual swing vote, likened the court's possible journey in the case to going into "uncharted waters" or even over "a cliff."

If the court avoids the looming question about a fundamental right, it could disappoint the two main lawyers pushing for same-sex marriage - Theodore Olson, who argued Tuesday, and David Boies, the legal partner who sat at his side. Yet, it would also mean that the worst-case scenario envisioned by other gay rights supporters would be avoided, too.

Their concern was certainly understandable. The Supreme Court's past cases on gay rights in narrower contexts, in 1996 and 2003, were vigorously fought. Four of the current nine justices are new to the gay rights issue. The bench is not as predictable as in the past, and overall, because Alito replaced Sandra Day O'Connor in 2006, the court may be more conservative on social policy.

So in May 2009, when Olson and Boies, former opponents from the 2000 presidential election case of Bush v. Gore, suddenly filed their challenge to Proposition 8, many gay rights activists and leaders expressed concern. Advocates who had been concentrating their efforts in the states worried that a federal case could backfire with a decision upholding Proposition 8 and declaring no constitutional right to same-sex marriage.

But that outcome now seems unlikely. While Supreme Court justices sometimes reverse course from the tone of arguments, it seems no major constitutional ruling will emerge from the California case of Hollingsworth v. Perry.

Justices on the right and left questioned whether proponents of Proposition 8, who took up its defense after California officials declined, have legal standing.

"Have we ever granted standing to proponents of ballot initiatives?" Justice Ruth Bader Ginsburg asked lawyer Charles Cooper, representing Proposition 8 supporters. Cooper said no but stressed that California's Supreme Court had ruled that under state law the backers of Proposition 8 should be allowed to defend it.

Chief Justice John Roberts voiced doubt, saying that "a state can't authorize anyone to proceed in federal court," because federal judges themselves determine who may bring claims.

LEGAL STANDING

Yet these questions of legal standing were in the case when the appeal from Proposition 8 supporters arrived on the Supreme Court's doorstep last year. And the court nonetheless took the appeal. It requires only four of the nine justices to accept a case for oral arguments; it takes five to resolve it.

Perhaps the thorny procedural hurdles became more obvious as the justices prepared for Tuesday's hearing. Or, perhaps that area might be the only one of common ground. There appeared to be no majority for either side's constitutional assertions.

Cooper argued that the states may limit marriage to heterosexual couples because of their interest in procreation and child rearing. Justice Elena Kagan, particularly, hammered at that notion, asking whether the court could block an older couple, possibly beyond their fertile years, from marrying.

Olson argued that Proposition 8 "walls off gays and lesbians from marriage," the most important relationship they might have. Roberts expressed doubt that California was plainly excluding a particular group. "When the institution of marriage developed historically, people didn't get around and say 'let's have this institution, but let's keep out homosexuals.' The institution developed to serve purposes that, by their nature, didn't include homosexual couples."

Justice Antonin Scalia, who has been the most outspoken opponent of gay rights on this court, challenged Olson to say exactly when same-sex marriage became the constitutional norm.

Olson could not but rather asserted: "It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control. There is no specific date in time. This is an evolutionary cycle."

(Reporting by Joan Biskupic; Editing by Eric Effron and Eric Beech)

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Gay-marriage cases to define Supreme Court legacy

By Joan Biskupic

WASHINGTON (Reuters) - When the U.S. Supreme Court considers the constitutionality of marriage for gay men and lesbians in the coming week, the justices will be taking a major step toward defining their own legacy.

In their first-ever review of same-sex marriage laws, the nine justices on the country's highest court are hearing arguments on Monday and Tuesday on one of the most politically charged dilemmas of the day, bound with themes of religion, sexuality and social custom.

The paired cases will be heard at a time when opinion polls show surging approval for gay unions and when prominent individuals and groups, such as the American Academy of Pediatrics, have been announcing support for same-sex marriage on a nearly daily basis.

Beyond the public drama, and central to the justices' regard for their own role, the marriage dispute offers a classic test of when courts should intervene in social dilemmas that have traditionally been the province of the states.

With such cultural and judicial crosscurrents, the controversy naturally draws a comparison to one of the court's most defining cases in the past 40 years. The 1973 Roe v. Wade decision made abortion legal nationwide just as states were weighing related legislation. The ruling generated a social and political backlash that endures today.

When the court declared a fundamental right to abortion, it preempted more permissive abortion laws that were emerging in some states. The ruling fortified political conservatism and the religiously based "right to life" movement. Some liberals who backed abortion rights, including now-Supreme Court Justice Ruth Bader Ginsburg, criticized Roe's sweeping rationale and its "rallying point" for the anti-abortion rights movement.

Some opponents of same-sex marriage have invoked the aftermath of Roe as they warn the justices against going too far too fast. They say that if the court forces all 50 states to accept gay marriage, the same as for abortion rights four decades ago, it will only prolong the gay-rights conflict.

Supporters of marriage for gay men and lesbians declare the comparison to Roe inapt and highlight the court's historic role of protecting minorities against bias. They say it would be wrong to wait to declare a constitutional right until more states, beyond the current nine and the District of Columbia, allow same-sex marriage.

Whether the court will be in sync with public opinion or seek to wait for more state action is difficult to predict. But it is likely that Justice Anthony Kennedy, who wrote the court's earlier two opinions supporting gay rights, albeit in narrower contexts, would play a leading role.

Harvard University constitutional law professor Richard Fallon observes that while Kennedy, a 76-year-old appointee of Republican President Ronald Reagan, subscribes to a limited judicial role in societal problems, he has become "the champion of gay rights." Fallon points to increasing public support for gay marriage and speculated that Kennedy would not want to be "on the wrong side of history."

Fallon also notes that unlike four decades ago with abortion, today's justices are fully conscious of tensions surrounding the issue. "In 1973, the court was completely blindsided by the reaction against Roe v. Wade," he said. "I think this court is aware of what they're walking into."

A Reuters/Ipsos poll this month found Americans still deeply divided on abortion: 47 percent said it should be legal in all or most cases and 42 percent said that abortion should be illegal in all or most cases. A majority also said they did not want such laws in the hands of the Supreme Court.

For same-sex marriage and civil unions, a Reuters/Ipsos poll in mid-March found deep differences of opinion regionally, although support was at 63 percent nationwide. The greatest support was in the Northeast, with 69 percent of adults favoring a gay marriage or civil-union right. The lowest support was in the South, at 57 percent.

or click on http://www.reuters.com/subjects/gay-marriage

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BENCH NEWCOMERS

It has been a decade since the court last took up a gay-rights case. Four new justices have joined the bench since then, including Chief Justice John Roberts, 58, who last year cast the deciding vote to uphold the Obama administration's healthcare law.

Roberts, a 2005 appointee of Republican President George W. Bush and a potential wild card in the current dispute, succeeded Chief Justice William Rehnquist, nearly 30 years his senior and an opponent of gay rights.

Justice Samuel Alito, also a Bush appointee, succeeded Sandra Day O'Connor in 2006; Alito has proven himself more conservative than O'Connor on social policy. Justices Sonia Sotomayor and Elena Kagan replaced David Souter and John Paul Stevens, in 2009 and 2010, respectively. Those appointees of President Barack Obama, a Democrat, would likely support gay rights as their predecessors did.

The two cases put the court on wholly new terrain. Prior gay-rights disputes tested a Texas criminal law against intimate homosexual relations and a Colorado prohibition on any anti-discrimination policy tied to sexual orientation. Both were struck down by 6-3 votes, in 2003 and 1996, respectively.

Tuesday's question is whether a state - California - may define marriage as only between a man and a woman. Supporters of Proposition 8 have implored the court to consider society's interests in procreation and childrearing by a man and woman. Opponents of the 2008 California ballot measure counter that the loving relationships of all couples deserve equal respect under the law. They cite the U.S. Constitution's guarantees of equal protection and due process.

Wednesday's arguments will focus on whether the federal government may, under the 1996 Defense of Marriage Act (DOMA), deny benefits to married gay and lesbian couples that are a right of their heterosexual counterparts.

The Obama administration has urged the court to strike down California's Proposition 8 and the DOMA provision. It also is seeking a level of constitutional protection for gay men and lesbians that would likely lead to same-sex marriage nationwide.

Whether the court is ready to take that leap is uncertain. As a group, these nine are more conservative than the court of the 1970s and more concerned about judges encroaching on the realm of legislators.

(Editing by Howard Goller, Mary Milliken and Jackie Frank)

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Can police collect DNA when someone is arrested? Supreme Court to decide

The US Supreme Court heard argument Tuesday in a case testing whether government officials can routinely collect a person’s DNA at the time he or she is arrested and then use that DNA sample to try to link the individual to unsolved crimes.

At issue in the case, Maryland v. King (12-207), is whether taking a DNA sample from an arrestee without first obtaining a court-authorized warrant is an unreasonable search under the Fourth Amendment.

DNA has become an essential law-enforcement tool, not just in its ability to conclusively identify an individual but, more important, through its ability to conclusively link suspects to cold cases.

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In effect, DNA is becoming in the 21st century what fingerprinting was to the 20th – except better.

But there’s a problem. Unlike a fingerprint, DNA material contains a plethora of highly personal information bound within a person’s genetic code. When the government seizes DNA material, it is taking control of more than just the ability to isolate an identifying pattern unique to one individual. With advances in genetic science, DNA might someday reveal information about an individual’s susceptibility to future diseases and perhaps even personality traits, scientists say.

Several justices expressed concern that seizing a DNA sample from an individual to solve cold cases is a search under the Fourth Amendment. What justifies the state taking such action without a warrant?, they wanted to know.

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Katherine Winfree, Maryland’s chief deputy attorney general, told the justices that the state did not need to obtain a warrant to collect DNA samples from arrestees because people in police custody have already surrendered a substantial amount of their liberty and privacy.

“That can’t quite be right,” Justice Elena Kagan countered. “Assume you’ve been arrested for something; the state doesn’t have a right to go search your house for evidence of unrelated crimes.”

She added: “Just because you’ve been arrested doesn’t mean that you lose your privacy expectations ... that aren’t related to the offense that you’ve been arrested for,” Justice Kagan said.

“What we’re seizing is not evidence of crime,” Ms. Winfree responded. “What it is is information related to that person’s DNA profile.”

One issue in the case is the purpose of collecting the DNA. Maryland uses it to help identify the arrestee, Winfree said. But the state also uses it to solve unsolved crimes.

Justice Sonia Sotomayor picked up the same line of questioning. “You are going to have to tell me why searching their person is different than searching their home or car,” she said.

Winfree replied that people in police custody have a reduced expectation of privacy that eliminates Fourth Amendment protections for a person’s DNA. Collecting the DNA sample, she added, is minimally intrusive, involving a buccal swab from the inside of an arrestee’s cheek.

Michael Dreeben, deputy US solicitor general, told the justices that taking a DNA sample was substantially different from searching a home for evidence of a crime. “It is far more like taking a fingerprint,” he said.

Both federal and state laws bar agencies from using stored DNA samples to analyze data for anything other than the identifying information, Mr. Dreeben said. An individual would retain a reasonable expectation that the rest of the DNA sample would remain private, he said.

According to Kagan, verifying a fingerprint match can take a matter of minutes, while Maryland’s DNA tests take on average 11 to 17 days to complete.

Dreeben responded that the expectation is that within two years, police will have DNA analyzers in police booking stations capable of completing an identification within 90 minutes.

Not all justices were skeptical of Maryland’s DNA statute. Justice Samuel Alito observed that police had long been permitted to routinely take fingerprints of suspects upon arrest, and it wasn’t clear why the same couldn’t be done with DNA swabs.

“I think this is perhaps the most important criminal procedure case that this court has heard in decades,” he said.

“The attorney for the state began by listing a number of crimes just in Maryland that had been solved using this,” he said. “So this is what is at stake: lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy.”

Kannon Shanmugam, the lawyer challenging the Maryland statute, countered that DNA testing involves a far greater intrusion into privacy than fingerprinting.

DNA contains significantly more information and significantly more personal information than a set of fingerprints, he said. In addition, no one has an expectation of privacy in his or her fingerprints, which are left on surfaces wherever the person goes. So unlike taking a buccal swab, collecting fingerprints at the police station is not considered a search for purposes of the Fourth Amendment, he said.

Forty-nine other states, the District of Columbia, Puerto Rico, and the federal government filed briefs in support of Maryland’s DNA collection statute.

The debate over DNA collection stems from the case of Alonzo Jay King, who was arrested in Wicomico County, Md., in April 2009 after he was accused of pointing a shotgun at a group of people. Police charged him with first- and second-degree assault.

Under the Maryland DNA law, as a recent arrestee for a serious crime, Mr. King was required to submit to a buccal swab from his cheek to collect a DNA sample.

The sample was sent to the national DNA database, where it matched DNA collected at the scene of a 2003 rape in Wicomico County, Md.

King was charged with rape and robbery in the 2003 unsolved crime. He was later convicted of first-degree rape and sentenced to life in prison.

King’s lawyer challenged the collection of the DNA evidence, arguing that police should have first obtained a warrant. The trial judge rejected the argument, but the Maryland Court of Appeals reversed. It ruled the police must first obtain a warrant before collecting DNA from an arrestee.

If King wins at the Supreme Court, it won’t necessarily mean an end to DNA testing of those within the criminal justice system. King’s lawyer concedes that the state has the power to collect DNA without a warrant from convicted criminals since a convicted criminal has a diminished expectation of privacy, below that of an arrestee.

A decision in the case is expected by June.

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