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Q&A: What happens when US Supreme Court hears arguments about same-sex marriage Tuesday?

WASHINGTON D.C. — The U.S. Supreme Court in January agreed to decide a historic question about same-sex marriages. On Tuesday, it will hear oral arguments in those cases.

The justices have ordered that the parties to the cases address two questions in their legal briefs: whether the Constitution requires states to issue marriage licenses to same-sex couples, and whether states must recognize same-sex marriages performed in other states where they are legal.

Q: Hasn’t the Supreme Court ruled on same-sex marriages before?

A: In June 2013, the court struck down a key part of the Defense of Marriage Act (DOMA), allowing legally married same-sex couples to receive federal benefits. The court also cleared the way for same-sex marriages in California by leaving in place a lower court’s ruling overturning the state’s Proposition 8, which defined marriage as between one man and one woman.

However, the justices stopped short of a more sweeping ruling that the fundamental right to marry must be extended to gay couples no matter where they live.

Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan declared unconstitutional DOMA’s prohibition on federal recognition of legally married couples — enacted when such unions were only theoretical.

Q: What happens Tuesday?

A: The court will hold 2 1/2 hours of oral arguments. There are two parts to the arguments: The first will focus on whether gay couples have the constitutional right to marry, and the second on whether states must recognize same-sex marriages legally performed in other states. Lawyers for both sides will make their cases in oral arguments.

The court is hearing four cases, but the title case is Obergefell v. Hodges.

Q: How much do oral arguments affect the justices’ rulings?

A: Justices say the arguments are a time for them to question the legal reasoning advanced by the parties in their briefs. The justices say that sometimes, but not often, oral arguments will affect the outcome of the decision.

Q: What else do the justices consider?

A: They consider the court’s precedents on the issue, their own theories of constitutional and statutory interpretation, and friend-of-the-court briefs submitted by interested parties — in this case, more than 150. But, as Ginsburg has said, the case is most often decided based on the written briefs submitted to the justices.

Q: What will we know at the end of arguments?

A: The justices sometimes reveal their thinking on the case through the kind of questions they ask the lawyers in front of them. It is also the first time the justices discuss the case themselves, so the way they ask questions is sometimes a signal to the rest of the court.

Q: What happens next?

A: Since this case is being argued on a Tuesday, the court will probably meet privately Wednesday and take a vote. The justices go around the table based on seniority, with Chief Justice John Roberts speaking first. The rule, they say, is that everyone speaks once before anyone is allowed to speak twice. Once they have decided the outcome, it’s time to write the opinions.

Q: Who writes the opinions?

A: If the chief justice is in the majority, he will either write the majority opinion himself or pick another justice in the majority to write it. If he is not on the winning side, the senior justice in the majority gets to make that decision. (Practically everything at the Supreme Court revolves around seniority.)

Writing such an historic decision will require some time, and if there are dissenting justices, they will be working on a dissenting opinion as well. All of the justices will either sign on to the majority opinion or state their own reasons about how the case should be decided.

Q: When will we know what the majority opinion is?

A: A case as important as this one tends to take some time. The ruling will be issued once the majority has agreed upon an opinion and, if there are dissenters, when those opinions are ready as well. The court’s only deadline is that it tries to finish its work by the end of June.

Q: What could happen after the ruling?

A: If the court rules against the constitutional right to get married, the ability to decide reverts back to the states. Most state officials, even those opposed to same-sex marriage, say they will follow the ruling if the justices say the Constitution requires the recognition of same-sex marriage.

© 2015, The Washington Post

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