Brian Brown, president of the National Organization for Marriage (NOM), said this week that he believes Justice Anthony Kennedy, often considered the court's swing vote, will uphold state bans on gay marriage.

During an appearance on Fox News, Brown noted the court's ruling in a case from last term that upheld the 2006 decision by Michigan voters that prohibits state universities from considering race when deciding a student's application to attend a state-run university

Kennedy, writing for the majority, wrote: “It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.”

“Kennedy makes quite clear that the people of the state of Michigan, whether the justices agree with them or not, have the right as a matter of simple process to vote on key issues and to resolve them for themselves,” Brown said.

Currently, defendants in cases challenging bans in three states – Utah, Oklahoma and Virginia – have asked the Supreme Court to intervene.

(Related: Federal appeals court denies stay in Virginia gay marriage case.)

Elizabeth B. Wydra, chief counsel at the Constitutional Accountability Center, disagreed with Brown's assessment: “When it comes to our most fundamental constitutional rights, you simply can't pass a law, even if it's through the regular democratic process, that infringes the federal Constitution.”