by Marcia Coyle, National Law Journal

Opening the door to a potentially historic step in the nation’s gay rights movement, the U.S. Supreme Court on December 7 agreed to decide two constitutional challenges involving same-sex marriage.

The justices will hear arguments in Hollingsworth v. Perry, which asks whether the U.S. Constitution’s 14th Amendment bars California from defining marriage as between a man and a woman. The second challenge is U.S. v. Windsor, raising the question of whether Section 3 of the federal Defense of Marriage Act (DOMA) violates the equal-protection guarantee of the Fifth Amend­ment as applied to same-sex couples who are legally married under their state laws.

In both cases, the justices also will consider procedural problems that could affect their ability to reach the ­merits of the challenges. In the Perry case, which stems from California’s passage of Proposition 8, a ban on same-sex marriage, the court ordered the parties to brief and argue whether the proponents of Prop. 8 had standing to appeal the lower court’s judgment. In the Windsor case, the court added two questions: whether the executive branch’s agreement with the U.S. Court of Appeals for the Second Circuit that DOMA’s Section 3 was unconstitutional deprives the justices of jurisdiction to decide the case, and whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives, which defended DOMA in the lower court, has standing.

The Perry and Windsor cases were among 10 same-sex marriage petitions for review that the justices considered at their conference on December 7. Perry stems from a ruling by the Ninth Circuit holding that Prop. 8 was unconstitutional because it took away same-sex couples’ right to marry — which the California Supreme Court had previously found constitutional — based on animus towards homosexuals. In Windsor, the Second Circuit held Section 3 of DOMA unconstitutional after applying heightened scrutiny to the provision.

“I had thought the court would take it in stages instead of doing DOMA and Perry at the same time,” said Paul Smith of Jenner & Block, who had assisted in another DOMA challenge pending before the justices. On the DOMA grant of review, he added, “The arguments are pretty much the same in all the cases. It makes sense in some ways to have a decision below from the court of appeals.”

Professor Douglas NeJaime of Loyola Law School, Los Angeles called the combination of grants in Perry and Windsor “really interesting” and added, “It’s really hard to know exactly what the justices are thinking. Windsor is the DOMA case that presents the heightened-scrutiny question and it was raised in Perry but the Ninth Circuit didn’t go there. The ­justices could be interested in saying it’s time to say sexual-orientation classifications merit heightened scrutiny.’

On the other hand, he said, “They could be prepared to split the difference and say a federal law like DOMA that denies recognition to valid state law marriages is unconstitutional, but not be prepared to find that states can’t prohibit marriage themselves.”

A third possibility, according to NeJaime, is that the justices will find both Prop. 8 and DOMA Section 3 unconstitutional under the Constitution’s lowest scrutiny — rational-basis review.

The standing question in the Prop. 8 case could prevent the justices from reaching the merits, both men agreed. If the court thought the standing issues in Windsor were substantial, NeJaime added, it could have granted more than one DOMA case since there was at least one other petition that the parties agreed did not present procedural problems.

The DOMA case added to the justices’ decision docket does not ask whether same-sex couples have a constitutional right to marry. Instead, the question is whether a federal law is unconstitutional because it discriminates by treating legally married same-sex couples differently from legally married opposite-sex couples.

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