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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Supreme Court to weigh IRS penalties on alleged tax dodges

By Patrick Temple-West

WASHINGTON (Reuters) - The U.S. Internal Revenue Service's practice of slapping steep, 40-percent penalties on participants in certain alleged tax shelters will soon come to trial before the Supreme Court.

Though it rarely hears tax matters, the court has decided to weigh in on a case involving Texas billionaire Billy Joe "Red" McCombs, a former owner of professional sports teams.

The court's decision, not expected until June 2014, will likely have implications beyond McCombs' case, tax lawyers said.

Oral arguments will be scheduled when the high court's next term begins in October.

The Obama administration's solicitor general is arguing that "hundreds of millions of dollars" in tax penalties are hanging in the balance, according to court filings. However, the decision will only apply to cases brought prior to 2010.

The case being taken up by the court involves a 1999 transaction undertaken by McCombs and his business partner, Gary Woods. The government contends it had no purpose other than tax avoidance. The transaction was known as "current options bring reward alternatives," or COBRA.

According to the government, Woods and McCombs bought and sold options on foreign currencies to generate paper losses used to offset gains chiefly related to McCombs's sports ventures.

The IRS initially applied a 40-percent penalty on the unpaid taxes that the agency said were owed, but the 5th U.S. Circuit Court of Appeals in New Orleans ruled in 2012 that the 40-percent penalty did not apply in the Woods case.

Woods is already subject to a 20 percent tax penalty on COBRA and the Supreme Court need not step in, Woods's lawyer has argued in court filings.

The lawyer representing Woods did not respond to requests for comment. Calls to San Antonio-based McCombs Partners, an investment management business which lists both Red McCombs and Gary Woods on its website, were not returned.

The IRS did not comment.

The government is arguing Woods and McCombs claimed more than $45 million in losses in 1999, from transactions that cost them only $1.37 million.

The COBRA strategy has drawn attention beyond the Woods case. COBRA was among a number of alleged tax shelter strategies subject to an IRS crackdown a decade ago.

Congress in 2010 passed the Health Care and Education Reconciliation Act, which slapped a 40-percent penalty on transactions such as COBRA. The penalty was to apply to taxpayers found by the IRS to have made "gross valuation misstatements" on their tax filings.

With Congress ensuring that transactions like COBRA cannot escape the 40-percent penalty, a government win in the Woods case "won't have much impact on the future," said Andrew Roberson, a partner with law firm McDermott Will & Emery LLP.

For pre-2010 cases still in limbo, "it's obviously important for the IRS to get a win at the highest level," he said.

The Woods tax shelter was promoted by Big Four accounting firm Ernst & Young, according to court documents. This month, Ernst agreed to a $123 million settlement to resolve a federal investigation into tax shelters it promoted.

The case is United States v Woods No. 12-562 (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-562.htm).

(Editing by Kevin Drawbaugh and Andrew Hay)

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Supreme Court agrees to hear Michigan affirmative action case

By Lawrence Hurley

WASHINGTON (Reuters) - The Supreme Court agreed on Monday to consider a Michigan law that bans affirmative action in public college admissions.

The consideration of race in the admissions process, aimed at correcting past racial discrimination, is deeply unpopular in conservative circles.

In November, a sharply divided 6th U.S. Circuit Court of Appeals in Cincinnati found that the 2006 state constitutional amendment banning the practice, approved by voters in Michigan, imposed burdens on racial minorities in violation of the Constitution's guarantee of equal protection. The state challenged the ruling in the Supreme Court.

The Michigan law bans preferential treatment toward any candidates in public university admissions.

The high court is simultaneously considering a case on whether colleges and universities can continue to give special preference to minority candidates in admissions policies, in a case involving the University of Texas. A ruling in that case, Fisher v. University of Texas, is expected imminently and will come no later than the end of June.

That the court agreed to hear the Michigan case before deciding the Texas case is unusual. The court's normal practice is to wait until it has issued a ruling before agreeing to hear another case on a related issue. This may mean that the court is struggling to decide the Texas case, or that the ruling could be coming as soon as this week.

A district court judge upheld the state law in the Michigan case, but a three-judge panel of the appeals court struck it down in 2011. The full appeals court reheard the case the following year and struck the law down on a 8-7 vote.

The majority of the appeals court said the Equal Protection Clause of the 14th Amendment does more than guarantee equal treatment under the law. It also prevents laws from being passed that change the political process to impose extra burdens on minorities, the court said.

"ON ITS HEAD"

Michigan Attorney General Bill Schuette, a Republican, wrote in the state's brief seeking the high court's review that the appeals court had adopted a theory that has been rejected by other courts in striking down a law that 58 percent of voters approved.

"Entrance to our great colleges and universities must be based upon merit, and I remain optimistic moving forward in our fight for equality, fairness and rule of law at our nation's highest court," Schuette added.

The challengers to the law are split into two groups.

One group, including the Coalition to Defend Affirmative Action, said it wanted the Supreme Court to hear the case even though the group won at the appeals court level. The issue is one of "surpassing national importance" that warrants the Supreme Court's attention, attorney George Washington wrote in a court filing.

In a statement, Washington said the law's supporters "are creating a new form of separate and unequal in a nation that will soon be majority minority," a reference to the growth in the United States of the minority population.

The other group, consisting of prospective college students, said there was no need for the justices to review the case because the 6th Circuit had applied court precedents correctly. Their attorney could not immediately be reached for comment.

In Monday's brief order announcing that the Supreme Court will hear the Michigan case, the court noted that Justice Elena Kagan is recused, meaning there is a possibility of a 4-4 split. Kagan is a former solicitor general under President Barack Obama.

Oral argument and a decision are expected in the court's next term, which runs from October 2013 to June 2014.

The case is Schuette v. Coalition to Defend Affirmative Action, U.S. Supreme Court, No. 12-682.

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

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As Supreme Court reviews gay marriage, Illinois battle heats up

By Mary Wisniewski

CHICAGO (Reuters) - Like many gay couples in the United States, Theresa Volpe and Mercedes Santos of Chicago will be keeping a close eye on the U.S. Supreme Court this week as it hears arguments on two same-sex marriage cases.

The high court review coincides with a crucial moment at home in the couple's fight to make Illinois the tenth state in the nation to legalize same-sex marriage. Volpe and Santos, who have personally lobbied Illinois lawmakers on this issue, worry about delays in drumming up enough votes for passage of a bill in their state and a growing campaign from opponents.

Supporters had hoped the bill would sail through the Democratic-majority legislature in President Barack Obama's home state in January. But it took until Valentine's Day to go through the Senate and was still several votes short in the House by late March.

"What's going on in Illinois is a little disturbing - we're worried and anxious, but I know they're working hard to make things happen," said Santos, who is bringing up two children with Volpe.

The delay underscores the difficulty of securing approval for gay marriage, even in a state with strong Democratic majorities in the legislature and a Democratic governor who supports it.

During a two-week legislative spring break that began on Monday, both sides were intensifying their efforts.

Opponents of the bill are focusing mainly on the more conservative and rural areas of the state south of Chicago, and some African-American districts in Chicago.

More than 425,000 robo-calls have been placed to constituents in more than 20 districts, according to Paul Caprio, director of Family-Pac, an Illinois-based family values political action group opposed to gay marriage.

Calls to six African-American districts have featured the voice of former state Senator James Meeks, a prominent Chicago black minister opposed to same-sex nuptials.

"We've had tremendous response from the minority community on this issue," Caprio said.

In one call to people in southwestern Illinois, Caprio's voice asks voters whether their state lawmaker stands for "the Chicago homosexuals, or your family?"

'LIKE ANY OTHER FAMILY'

Bernard Cherkasov, executive director of Equality Illinois, a Chicago-based gay rights organization, said proponents were focusing more on personal appeals to legislators from constituents, including ministers and rabbis and gay couples themselves.

"I do feel really optimistic. We're really close, we're in striking distance to passing the bill," he said.

Volpe, 42, and Santos, 47, are among the gay couples who taken their appeal to lawmakers in the Illinois state capital of Springfield.

They have been together for 21 years and have two children, Ava, 8, and Jaidon, 4, conceived through an anonymous donor. The couple became outspoken advocates for gay marriage after Jaidon suffered kidney failure two years ago and was in danger of dying.

While Theresa filled out the paperwork at the hospital, Mercedes sat with him in his room. But then Theresa was told she could not see Jaidon, as there was no hospital policy for two mothers.

They believe marriage will be easier to explain to people at hospitals and other facilities than the civil union they formed after Illinois approved that option in 2011. And they want the federal rights heterosexual couples have, including Social Security benefits and tax exemptions for a surviving spouse's inheritance.

"We want people to realize that we're just like any other family - we love our kids - we don't do anything special but be parents," Santos said.

On Tuesday, the Supreme Court will hear arguments in a challenge against California's voter-approved ban on same-sex marriage known as Proposition 8. On Wednesday, the justices will hear arguments on the Defense of Marriage Act, which excludes gay couples from federal benefits.

It is difficult to predict how the court might rule on Proposition 8, and how that would affect other states. One option could affect Illinois and other states that are like California in allowing civil unions but forbidding actual marriage. The Obama administration wants the Supreme Court to strike down Proposition 8 because it relegates such same-sex civil unions to a lower legal status.

Public opinion nationally has been turning in favor of gay marriage and civil unions. A Reuters/Ipsos poll in mid-March found 63 percent of Americans in favor of gay marriage or civil unions.

(Additional reporting by Joan Biskupic; Editing by Greg McCune, Mary Milliken and David Brunnstrom)

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