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Justice Ginsburg: Supreme Court will take up same-sex marriage by 2016

Justice Ruth Bader Ginsburg arrives before President Barack Obama's first State of the Union.
Justice Ruth Bader Ginsburg arrives before President Barack Obama's first State of the Union.
Nicholas Kamm / AFP via Getty Images

The Supreme Court will take up the issue of same-sex marriage in 2015 or 2016, Justice Ruth Bader Ginsburg on Thursday told the Associated Press.

"I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."

Ginsburg's comments are the latest assurance that the issue is working up to the nation's highest court. After the Supreme Court struck down the federal ban on same-sex marriages, state and federal courts have unanimously rejected states' same-sex marriage bans as unconstitutional.

So far, it seems the case against Utah's same-sex marriage ban is the most advanced. That case became the first to get an appeal to the Supreme Court after the 10th Circuit Court of Appeals deemed Utah's same-sex marriage ban unconstitutional.

LGBT advocates are fairly confident the Supreme Court will rule 5-4 to strike down states' same-sex marriage bans, just like the court did in the case against the federal Defense of Marriage Act. Justice Anthony Kennedy, who would likely act as the swing vote in a same-sex marriage case, wrote the majority opinion that ended the federal government's ban on same-sex marriages.

"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways," Kennedy wrote. "By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound."

The same rationale has been applied by lower courts to strike down states' same-sex marriage bans. If Kennedy takes the same path in 2015 or 2016, marriage equality could be nationwide within a couple years.

Although the Supreme Court will likely be the one to decide this issue, court watchers argue the lower courts' decisions still matter. The lower courts' rulings create momentum in support of same-sex marriage rights, and the legal battles in the lower courts give advocates and lawyers a chance to test out different arguments. In the long fight over same-sex marriage, the unanimity of the lower courts' decisions could be enough to end the issue once and for all.

To learn more about the legal battle over same-sex marriage, read our full explainer:

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