The tide might be turning in favor of gay marriage, but that doesn’t mean the Supreme Court will be swept up in it. 
 
 For all the toasting in Washington and excitement among gay rights groups about the historic oral arguments this week, there’s still a chance their set of cases could culminate in a loss. 
 
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 Under the worst-case scenario for gay rights groups, the court could uphold both California’s Proposition 8 and the federal law Defense of Marriage Act — extending no new rights to gay couples looking to marry or take advantage of federal benefits extended to opposite-sex couples. 
 
 But gay rights activists say this wouldn’t have the impact of Plessy v. Ferguson — the 1896 decision that left “separate but equal” the law of the land until Brown v. Board of Education six decades later. 
 
 (Also on POLITICO: Culture wars return — with a twist) 
 
 Instead, they say, they would still leave the court in a better position than when they started their legal trek because public opinion has swung in their favor, supporters have been galvanized and about 100 prominent Republicans signed a brief publicly endorsing gay marriage. 
 
 “Even if you lose the case, and I think that’s very unlikely, you would say that the case has been a success because it’s changed public opinion so dramatically,” said Richard Socarides, a former adviser to President Bill Clinton. “It’s really unbelievable what a successful communications and litigation strategy has combined to do in such a short time.” 
 
 Plus, they don’t think they’re going to lose big at all. 
 
 “There’s zero possibility,” said University of Chicago law professor Geoffrey Stone. 
 
 One key source of confidence is Justice Anthony Kennedy’s majority ruling 17 years ago in Romer v. Evans, a case throwing out a Colorado ballot measure that banned any special protections for gays and lesbians. Many analysts believe that decision and a 2003 ruling he wrote banning sodomy laws essentially guarantee Kennedy will vote to find the Defense of Marriage Act unconstitutional. With the four Democratic-appointed justices thought to favor at least that much of a win for gay rights, Kennedy would make a majority. 
 
 (Also on POLITICO: Poll: Court approval near record low) 
 
 Other potential GOP pickups for the pro-same sex marriage forces are Chief Justice John Roberts and Justice Samuel Alito. 
 
 For those reading tea leaves, there are signs Roberts could be in play. While in private practice in 1995, Roberts gave pro bono help to the legal team preparing briefs and oral arguments for the Colorado case. And Roberts is using some of his personal allotment of tickets to this week’s arguments to allow a lesbian cousin and her partner to attend oral arguments, the Los Angeles Times reported. 
 
 Justices Antonin Scalia and Clarence Thomas are considered pretty certain votes against same-sex marriage. Scalia defended the Colorado measure as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” Thomas joined the opinion. 
 
 (PHOTOS: 21 landmark SCOTUS rulings) 
 
 There is one potential wild card on the left: Justice Ruth Bader Ginsburg. Though she was a pioneering litigator for the American Civil Liberties Union on gender issues, she has repeatedly said she thinks the Roe v. Wade decision went too far because it forced a consensus that many Americans had not arrived at and led to a backlash. 
 
 “It’s not that the judgment was wrong, but it moved too far too fast,” she said at Columbia Law School last year. “The court made a decision that made every abortion law in the country invalid, even the most liberal. … Things might have turned out differently if the court had been more restrained.” ||||| The most expensive ticket to "The Book of Mormon" on Broadway: $477. The face value of a great seat for this year's Super Bowl: $1,250. Guaranteed seats to watch the U.S. Supreme Court hear this week's gay marriage cases: about $6,000. 
 
 Wally Suphap from Calif., waits in line to enter Supreme Court in Washington, Monday March, 25, 2013, a day before the court will hear a same-sex marriage case. (AP Photo/Jose Luis Magana) (Associated Press) 
 
 Joey Williamson, left, and Gary Brown form New York City, cover themselves from the snow as they wait in line outside of the Supreme Court in Washington, Monday March, 25, 2013, a day before the court... (Associated Press) 
 
 People wait in line outside of the Supreme Court in Washington, Monday March, 25, 2013, a day before the court will hear a same-sex marriage case. (AP Photo/Jose Luis Magana) (Associated Press) 
 
 Taylor, Talla and Vincent Carter cover themselves from the snow as they wait in line outside of the Supreme Court in Washington, Monday March, 25, 2013, to watch Tuesday's same-sex marriage hearing before... (Associated Press) 
 
 Tickets to the two arguments that begin Tuesday are technically free. But getting them requires lining up days or hours ahead, or paying someone else to. The first people got in line Thursday, bringing the price of saving a seat to around $6,000. 
 
 For some, putting a value on the seats is meaningless. 
 
 "It's just not possible," said Fred Sainz a spokesman for the Human Rights Campaign, the nation's largest gay rights organization, which began employing two people to stand in line Thursday. 
 
 The court will hear arguments Tuesday over California's ban on same-sex marriage. On Wednesday, the court will take up the federal Defense of Marriage Act, the 1996 federal law that defines marriage as between one man and one woman. Supporters and opponents of same-sex marriage say the cases are so potentially historic that they want to be inside the courtroom to watch, no matter what the cost in time or money. 
 
 Part of the reason the seats are so coveted is the court doesn't allow TV broadcasts of its arguments, so coming in person is the only way to see the justices at work. The court has said it will release transcripts of the hearings as well as audio recordings roughly two hours after each case ends, but advocates say that's no substitute for being there. 
 
 Seats, meanwhile, are at a premium because there aren't that many. The courtroom seats about 500 people, but seats are reserved for court staff, journalists and guests of the justices and lawyers arguing the case. After those people are seated, there will be about 100 seats Tuesday for lawyers who are members of the Supreme Court bar and at least 60 seats for the general public. An additional 30 seats for the public will rotate every three to five minutes. Tickets for all those seats are handed out on a first come, first served basis. 
 
 For the most controversial cases, the line to get those tickets can start to form about a day before. When the court heard three days of arguments on health care last year, the first people arrived three days early. 
 
 This time, the line started even earlier. By Monday morning there were more than three dozen people waiting, even as snow was falling. Several in the line said they were being paid, while others included college students and a substitute teacher. People in line said they passed the time talking and reading. 
 
 There were games of cards and at one point people watched the television show "The West Wing" on one person's computer. Those waiting said they'd made friends, and they traded watching each other's chairs and sleeping bags to go for bathroom breaks or coffee. On Monday morning, one man came around offering others donuts. 
 
 Donna Clarke, 62, of Mountain View, Calif., arrived Sunday night and was 37th in line. The Army veteran who has been with her partner for 27 years had intended to just be part of a planned demonstration outside the court Tuesday, but she decided to join the line when she realized it might be possible to get inside. 
 
 "I think there'll be a lot of my friends who will be very jealous," said Clarke, who intends to marry her partner in Massachusetts before they return to California, and said the Supreme Court's decision could be a "transformative moment" for the country. 
 
 Most of the people waiting in line are supporters of gay marriage. But opponents, too, said they intend to be at the court to watch. 
 
 Ken Klukowski, a lawyer at the Family Research Council and a professor at Liberty University School of Law in Virginia, says these cases are "not just major, not just blockbuster, but historic." Klukowski said he expects to be getting up in the middle of the night to get in the separate line for members of the Supreme Court bar. 
 
 "No one knows how early but ridiculously early," Klukowski said. 
 
 For those willing to pay to get in, several Washington services will hold a person's place in line. One company charges $36 per hour, another $50, meaning the cost of a 5-day line stander comes in at $6,000. John Winslow, the operations manager of Linestanding.com, which like most other line standing services is also a courier service, said his service would be holding places for 40 to 50 clients, a number of them lawyers. His group held about 35 places in line for the health care arguments last year, he said. Most people, he said, are starting their line stander 24 hours before, so they'll spend $864 to attend. 
 
 Linestanding.com's owner, Mark Gross, said for many of his clients, attending is personal. 
 
 "Health care was more about public policy and the direction that the country was going politically," Gross said. "But this really affects people in a personal way," 
 
 Kate Kendell, the executive director of the National Center for Lesbian Rights in California, contacted Linestanding.com three weeks before the argument to secure her space. Kendell, a lawyer, said she tried to get into a Supreme Court case that involved gay rights in 1995. By the time she arrived at 3 a.m. on the day of the argument, she said, there were so many people she could only get in a line that allows people to watch three minutes of the argument. This time she isn't taking any chances. 
 
 "This is one of those experiences that I want to see firsthand. I want to see the faces of the justices. I want to hear their questions," she said. 
 
 She initially planned for her line stander to start at 4 a.m. Tuesday but has since moved the time up twice. 
 
 "All I care about is being in that courtroom and I'm pretty much willing to do whatever I have to do," Kendell said. 
 
 ___ 
 
 Follow Jessica Gresko at http://twitter.com/jessicagresko ||||| Taylor, Talla and Vincent Carter cover themselves from the snow as they wait in line outside of the Supreme Court in Washington, Monday March, 25, 2013, to watch Tuesday's same-sex marriage hearing before... (Associated Press) 
 
 The Supreme Court is wading into the fight over same-sex marriage at a time when public opinion is shifting rapidly in favor of permitting gay and lesbian couples to wed, but 40 states don't allow it. 
 
 The court's first major examination of gay rights in 10 years begins Tuesday with a hearing on California's ban on same-sex marriage. On Wednesday, the justices will consider the federal law that prevents legally married gay couples from receiving a range of benefits afforded straight married Americans. 
 
 People have been waiting in line _ even through light snow _ since Thursday for coveted seats for the argument over California's Proposition 8. 
 
 The two California couples challenging the voter-approved ban on same-sex marriage in the nation's largest state are in Washington for the argument and are urging the justices to strike down not just the California provision, but constitutional amendments and statutes in every state that define marriage as the union of a man and a woman. 
 
 They envision the 21st century equivalent of the court's 1967 decision in Loving v. Virginia that struck down state bans on interracial marriages. 
 
 The Obama administration has weighed in on behalf of the challengers, following President Barack Obama's declaration of support for same-sex marriage last year and his invocation of gay rights at his inauguration in January. 
 
 Supporters of Proposition 8 say the court should respect the verdict of California voters who approved the ban in 2008 and let the fast-changing politics of gay marriage evolve on their own, through ballot measures and legislative action, not judicial decrees. 
 
 Same-sex marriage is legal in nine states and the District of Columbia. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington. 
 
 Thirty states ban same-sex marriage in their state constitutions, while ten states bar them under state laws. New Mexico law is silent on the issue. 
 
 The case is being argued 10 years to the day after the court took up a challenge to Texas' anti-sodomy statute. That case ended with a forceful ruling prohibiting states from criminalizing sexual relations between consenting adults. 
 
 Justice Anthony Kennedy was the author of the decision in Lawrence v. Texas in 2003, and he is being closely watched for how he might vote on the California ban. He cautioned in the Lawrence case that it had nothing to do with gay marriage, but dissenting Justice Antonin Scalia predicted the decision would lead to the invalidation of state laws against same-sex marriage. 
 
 Kennedy's decision is widely cited in the briefs in support of same-sex unions. 
 
 The court has several options for its eventual ruling, which is not expected before late June. In addition to upholding the ban and invalidating prohibitions everywhere, the justices could endorse an appeals court ruling that would make same-sex marriage legal in California but apply only to that state. They also could issue a broader ruling that would apply to California and eight other states: Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. In those states, gay couples may join in civil unions or become domestic partners and have all the benefits of marriage but cannot be married. 
 
 One other possibility is a ruling that says nothing about marriage. California's top elected officials, Gov. Jerry Brown and Attorney General Kamala Harris, are refusing to defend Proposition 8, and there is a question about whether the Proposition 8 supporters have the right, or legal standing, to defend the measure in court. If the justices decide they do not, the case would end without a high court ruling about marriage, although legal experts widely believe same-sex marriages would quickly resume in California. 
 
 The California couples, Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, filed their federal lawsuit in May 2009 to overturn the same-sex marriage ban that voters approved the previous November. The ballot measure halted same-sex unions in California, which began in June 2008 after a ruling from the California Supreme Court. 
 
 Roughly 18,000 couples were wed in the nearly five months that same-sex marriage was legal and those marriages remain valid in California. 
 
 The high-profile case has brought together onetime Supreme Court opponents. Republican Theodore Olson and Democrat David Boies are leading the legal team representing the same-sex couples. They argued against each other in the Bush v. Gore case that settled the disputed 2000 presidential election in favor of George W. Bush. 
 
 Opposing them is Charles Cooper, Olson's onetime colleague at the Justice Department in the Reagan administration. 
 
 The case is Hollingsworth v. Perry, 12-144. ||||| The U.S. Supreme Court takes up what is probably its biggest civil-rights dispute in decades this week when it hears arguments that could lead to the legalization of same-sex marriage nationwide. 
 
 Exactly a year after the justices began hearing arguments on President Barack Obama’s health-care law, they will consider today and tomorrow two cases whose legal, political and practical stakes may prove almost as great. The high court has never before heard arguments on gay marriage. 
 
 Below are answers to questions about how the cases will unfold over the next three months: 
 
 What are the two cases? 
 
 One concerns the right to same-sex marriage itself while the second involves the federal benefits available to legally married gay couples. 
 
 The first centers on California’s Proposition 8, the 2008 ballot initiative that banned same-sex marriage in the state. The initiative effectively overturned a decision by the California Supreme Court, which had ruled five months earlier that the state’s constitution required recognition of same-sex nuptials. Two couples seeking to marry are challenging the law. 
 
 The second case concerns the Defense of Marriage Act, the 1996 federal law that defined marriage as a heterosexual union. Under the law, gay spouses can’t claim the federal benefits available to other married couples, including the rights to file a joint tax return and receive Social Security survivor benefits. DOMA, as the law is known, is being challenged by Edie Windsor, an 83-year-old New York resident fighting a $363,000 federal estate tax bill imposed after the 2009 death of her spouse. 
 
 What are the major legal issues? 
 
 In each case, the central question is whether the law violates the constitutional guarantee of equal protection. Depending on how the court approaches the cases, reaching the answer may involve several steps. An important preliminary question is whether laws discriminating against gays should be given “heightened scrutiny,” a stricter standard that judges already use in cases involving race or gender discrimination. Should the court invoke heightened scrutiny, it almost certainly will strike down both laws. 
 
 Opponents of Proposition 8 are also making arguments based on the Constitution’s due process clause, which the court has previously said makes marriage a “fundamental right.” In addition, the court will grapple with procedural questions about its power to resolve the two cases at all. 
 
 What are the possible outcomes? 
 
 In the Proposition 8 case, there is a spectrum of choices for the court. At one end, it could uphold the ballot initiative, reversing the decision of a federal appeals court. That would mean no gay marriage in California, though the state’s voters could go back to the polls and repeal the initiative. Gay marriage would remain a state-by-state issue. 
 
 Alternatively, the Supreme Court could allow gay marriage in California, without affecting the rest of the country, by adopting the appeals court’s reasoning. That court said states can’t strip gays of the opportunity to marry once they possess the right, as they did in California for the five months before Proposition 8 was approved. 
 
 A more far-reaching option — one suggested by the Obama administration — would be to say that states can’t deny the “marriage” label while letting gay couples form civil unions with all the rights and responsibilities of heterosexual spouses. Such a ruling would apply to nine states — California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, Rhode Island and Colorado. 
 
 Finally, the court could go big and declare gay marriage to be a constitutional right across the country. 
 
 How about with DOMA? 
 
 The options with DOMA look to be more straightforward. Assuming the case doesn’t get sidetracked by a procedural issue, the court in all likelihood will simply say whether the law is constitutional. There is no real middle ground. 
 
 Could we get a split decision? 
 
 Absolutely. Although the cases do have a common issue –whether to apply heightened scrutiny — they otherwise present distinct legal questions. 
 
 One plausible outcome would be for the court to strike down DOMA and uphold Proposition 8. The court — or at least the justices in its center — could reason that, while Congress had no rational reason to deny benefits to legally married gay couples, states can justify reserving marriage itself to heterosexuals. 
 
 Such a ruling would be a victory for federalism, leaving the issue of gay marriage entirely in the hands of the states. 
 
 Who are the justices to watch? 
 
 As is often the case, Justice Anthony Kennedy’s vote looms large. Kennedy has championed gay rights before, most recently writing the 2003 decision that said states can’t criminalize gay sex acts. Overturning the convictions of two men in Texas, he wrote that “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Even so, Kennedy made clear he wasn’t passing judgment on gay marriage. 
 
 Several other justices are potentially pivotal as well. Gay-rights supporters are looking at Chief Justice John Roberts, who cast the deciding vote to uphold Obama’s health-care law last year. Like several of his colleagues, Roberts has never ruled on gay rights. As chief justice, he may wish to write the court’s lead opinion, whatever it says. 
 
 Among the court’s four Democratic appointees, Justice Ruth Bader Ginsburg last year raised questions about how far she would go in backing gay marriage. Speaking at Columbia Law School, she said the court “moved too far too fast” when it made abortion legal nationwide in the 1973 Roe v. Wade case. 
 
 Who’s on which side? 
 
 With some notable exceptions, the case stacks up as a partisan clash, with Democrats including Obama backing gay marriage and Republicans led by House Speaker John Boehner opposed. 
 
 Exceptions include Theodore Olson, the Republican former U.S. solicitor general who is leading the legal challenge to Proposition 8. More than 100 prominent Republicans, most now out of office, also signed a brief opposing Proposition 8. 
 
 The gay-marriage side also has support from corporations, including Apple Inc., Morgan Stanley and Facebook Inc. 
 
 So what are the procedural issues? 
 
 In both cases, the justices asked the parties to submit arguments about the legal power of the court to rule. Depending how the court resolves those issues, one or both cases could be derailed. 
 
 With Proposition 8, the issue stems from the 2008 decision by then-Attorney General Jerry Brown, now the state’s governor, not to defend the measure in court. That prompted the official sponsors of the initiative, led by former state Senator Dennis Hollingsworth, to take up the defense. 
 
 The issue is whether Hollingsworth had legal “standing” to appeal after U.S. District Judge Vaughn Walker declared the law unconstitutional. Should the Supreme Court conclude Hollingsworth didn’t, its ruling would reinstate Walker’s decision. 
 
 The question then would become how broadly Walker’s ruling would apply. The group challenging the law says it would extend statewide, meaning gay marriage would be reinstated in California. Backers of Proposition 8 say the decision would apply at most to the two couples who sued to challenge the measure. The Supreme Court probably wouldn’t answer that question itself and instead would kick the case back down to a lower court for an answer. 
 
 And what is the procedural question with DOMA? 
 
 The issues with DOMA are similar, though not identical. The Obama administration argues that the law is unconstitutional, even while saying it’s obliged to continue enforcing it. Congressional Republicans are spearheading the defense. 
 
 The court will look at two closely related questions. The first is whether the Constitution gives the court power to decide the case, given that the plaintiff and defendant — that is, Windsor and the federal government — agree on the proper outcome. The court also will consider whether the congressional leaders have standing to press their own appeal. 
 
 Should the court conclude it lacks power to rule, the status of DOMA might be left in legal doubt for years. 
 
 What’s the state of public opinion? 
 
 Support for gay marriage has soared in recent years. A Pew Research Center poll released last week found that 49 percent of adults supported legalization, with 44 percent opposed. Ten years earlier a Pew poll found only 33 in support, with 58 percent opposed. The latest poll had a margin of error of plus or minus 3.0 percentage points. 
 
 Californians back gay marriage by almost 2-1, with 61 percent supporting it and 32 percent opposed, according to a Field Poll released last month. That survey had a margin of error of plus or minus 3.5 percentage points. 
 
 Any chance of television coverage? 
 
 No. As is its practice, the court won’t allow television cameras into its courtroom. The justices, however, are planning to release audio recordings of the arguments the same day they are heard. 
 
 When will the court rule? 
 
 As with health care last year, the ruling almost certainly will come at the end of the court’s term. The last week of June looks to be historic one way or another. 
 
 The cases are United States v. Windsor, 12-307, and Hollingsworth v. Perry, 12-144. 
 
 Recommended Citation: Greg Stohr, How historic Supreme Court gay-marriage case will unfold: Q&A, SCOTUSblog (Mar. 25, 2013, 11:09 PM), http://www.scotusblog.com/2013/03/how-historic-supreme-court-gay-marriage-case-will-unfold-qa/
– The Supreme Court hears two landmark gay rights cases this week, starting today. Here's what to expect: What's on the docket for today? The court will consider California's voter-approved Prop 8, which banned same-sex marriage after the state Supreme Court allowed it, the AP reports. A federal district judge struck down Prop 8, but his decision was stayed until the Supreme Court can weigh in, the New York Times reports. What's on deck for tomorrow? The court will consider the Defense of Marriage Act, which bars the federal government from recognizing gay marriages. What outcomes could we see? A decision is not expected until late June. Worst-case scenario for gay rights activists, per Politico: The court upholds both Prop 8 and DOMA. But there are a raft of other possibilities in the Prop 8 case: The justices could make same-sex marriage legal in California, but only California, thus leaving the decision up to states; they could make it legal in California and the eight other states that currently allow civil unions or domestic partnerships for gay couples; or, as activists hope, they could strike down all state bans on gay marriage. There's also the slim possibility the court will decide Prop 8 supporters don't have the right to defend it in court (California's governor and attorney general have refused to defend it). If that happens, legal experts believe same-sex marriages would resume in the state, but ironing things out could involve a lower court. How about the DOMA case? There are only two likely outcomes, SCOTUSblog reports: The court will decide it's unconstitutional or constitutional. We could see a split decision, with DOMA being struck down but Prop 8 being upheld. Why is today historically noteworthy? Exactly 10 years ago, the Supreme Court heard a challenge to Texas' anti-sodomy statute in Lawrence v. Texas. Ultimately, the court prohibited states from criminalizing sex acts between consenting adults. Which justices should we watch? Anthony Kennedy, for one—he wrote the Lawrence decision and is expected to be the swing member of the court; he also championed gay rights in another case, and experts believe he'll at least make a majority, with the four Democrat-appointed justices, in finding DOMA unconstitutional. On the GOP side, Chief Justice John Roberts has given some hints he could swing pro-gay marriage; Samuel Alito may as well. But Antonin Scalia and Clarence Thomas will almost certainly not. And the court's liberals aren't a sure bet when it comes to the Prop 8 case—Ruth Bader Ginsburg, for example, has said the court "moved too far too fast" by making abortion legal in Roe v. Wade, leading to public backlash. How much did a seat to watch the court "cost"? About $6,000, the AP reports. Technically, of course, it's free to get in—but you have to line up, or pay someone else to do so. In this case, people started queuing Thursday, and at $36 to $50 per hour for a professional line-stander, that adds up. And no, you won't be able to catch the arguments on TV. Click to see the latest senators backing gay marriage.