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Analysis

Same-sex couples & the Supreme Court: What to expect in coming weeks

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Within the next few weeks, the U.S. Supreme Court will likely announce whether it will hear arguments and rule on two important sets of cases that have a significant impact on thousands of same-sex couples throughout the United States.

First, the Supreme Court must decide whether or not it will review a set of federal cases challenging the constitutionality of the misleadingly titled Defense of Marriage Act, or DOMA—a discriminatory federal law that denies same-sex couples the rights and benefits of marriage that are otherwise afforded to different-sex couples. Second, the Supreme Court must decide whether or not it will rule on the constitutionality of Proposition 8—a 2008 voter-approved amendment to the California constitution that stripped gay* Californians of their right to marry the person they love. Lower federal courts have found both the Defense of Marriage Act and Proposition 8 to be unconstitutional.

Fresh off marriage equality victories in four states, a record number of gay candidates elected to Congress, and the re-election of a president who supports the freedom to marry, the DOMA cases and the Proposition 8 case present the Supreme Court with the opportunity to affirm that discrimination and unequal treatment under the law do not comport with our nation's constitutional values.

The Supreme Court may grant certiorari—which means it will hear arguments and rule on a given case—to the Prop 8 case and the DOMA cases, one but not the other, or it may deny review to both. The Court is expected to conference on Friday, November 30, to consider which of these two sets of cases it will grant or deny review, with an announcement likely coming the following Monday, December 3.

Let us examine both the DOMA cases and the Proposition 8 case in turn.

The Supreme Court will likely address the constitutionality of the Defense of Marriage Act

The so-called Defense of Marriage Act is a discriminatory law that forces the federal government to deny recognition of legally valid marriages of same-sex couples. The law inflicts tangible economic harm on families headed by same-sex couples by denying these families benefits that are critical sources of economic security and support. These benefits include Social Security benefits, health insurance for spouses of federal employees, spousal sponsorship visas, benefits for military spouses, and many more.

Beyond denying benefits to same-sex spouses, the Defense of Marriage Act also forces many gay people to bear higher tax burdens than their straight counterparts. Edie Windsor, the 83-year-old plaintiff in one of the DOMA cases, for example, was required to pay more than $363,000 in federal estate taxes upon inheriting the home of her deceased female partner of 40 years. Had Edie been married to a man, the government would not have levied any tax on her inheritance.

To date, six federal courts—four district courts and two circuit courts of appeal—have all arrived at the same conclusion: The Defense of Marriage Act is unconstitutional. No federal court has ruled that the law is constitutional in at least the past five years. Put simply, the government does not have a substantial or compelling interest in denying same-sex couples marriage benefits, and therefore the law violates both the constitutional equal protection and due process rights of gay individuals.

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The Obama administration agrees. In February 2011 U.S. Attorney General Eric Holder announced that the administration determined that the Defense of Marriage Act is unconstitutional and that it would no longer defend the law in court. House Republicans, however, have since led the legal charge to keep the law on the books. A majority of the American public also wants to see the Defense of Marriage Act repealed. And 7 out of 10 (69 percent) law professors concluded that the law is unconstitutional.

Legal scholars and analysts who closely follow the Supreme Court generally agree that the Court will likely grant certiorarito at least one of the DOMA cases, possibly combining the four cases into one omnibus case for review. Should the Court grant review to some combination of the DOMA challenges, oral arguments would occur this coming winter, with a decision on the law's constitutionality announced by the end of June 2013.

If the Supreme Court denies review of the DOMA cases, however, the Circuit Court of Appeals rulings will stand and the law will be deemed unconstitutional in the two jurisdictions where appeals courts have ruled on the matter: the 1st Circuit, which includes Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico; and the 2nd Circuit, which includes Vermont, New York, and New Hampshire. The law's fate would also then await review in the two jurisdictions where the cases remain before appeals courts.

In other words, if the Supreme Court opts not to rule on the law's constitutionality, it would technically be considered unconstitutional in some parts of the country and constitutional in others. The confusion wrought by lower courts invalidating a federal law, as in this situation, is one of the main reasons why many legal scholars believe the Court will likely decide on the Defense of Marriage Act this upcoming term.

The Supreme Court could also review Proposition 8's constitutionality

When a narrow majority of California voters approved Proposition 8 in 2008, they chose to enshrine discrimination into the California constitution by defining marriage as the union between one man and one woman. This constitutional amendment effectively stripped same-sex couples of their right to marry—a right they gained after the California Supreme Court determined earlier that year that barring those couples from marriage violated the California constitution's equal protection and due process clauses.

Proponents of marriage equality in California challenged Proposition 8 in federal court in the Hollingsworth v. Perry case (formerly Perry v. Brown and even more formerly known as Perry v. Schwarzenegger). Two federal courts—a U.S. district court and the 9th Circuit Court of Appeals—determined that Proposition 8 violates the U.S. Constitution. While Supreme Court experts generally agree that the Court will likely rule on the constitutionality of the Defense of Marriage Act, those experts are not so certain that the Court will weigh in on Perry.

Should it grant reviewto Perry, the Court would follow a timeline similar to that of the DOMA cases, with oral arguments occurring in the winter and a ruling being issued in by the end of June. Should the Supreme Court deny review in the Perry case, however, the 9th Circuit's ruling would stand and marriage equality would once again return to the Golden State. This means that the more than 98,000 same-sex couples living in California—the nation's most populous state—would once again have the freedom to marry the person they love.

Alternatively, the Supreme Court may decide to neither grant nor deny review to the Perry case. It instead may "hold" the case for review for the Court's next term. This would allow the court to rule on the constitutionality of the Defense of Marriage Act while delaying a ruling on marriage equality until the following year.

Should the Court take up the Perry case, this year or later, the question would be whether the Supreme Court, despite leaning in a conservative direction on the whole, will side with public support and the lower federal courts in affirming marriage equality for same-sex couples. That is, will they affirm that denying the rights and responsibilities of marriage to same-sex couples is unconstitutional? Similarly, if the court grants review in the Proposition 8 case, how far-reaching will the Court's potential decision be? Will the Court simply affirm that a same-sex marriage ban in California was unconstitutional, or will the Court issue a more sweeping ruling?

The Supreme Court should recognize equal treatment under the law for same-sex couples

There is no question that the tide of history is on the side of the gay community. Polls consistently find that the freedom to marry enjoys broad public support nationwide. President Obama has voiced public support for same-sex marriage, as have countless other elected policymakers. In the November 2012 election, voters in three states—Maine, Maryland, and Washington—embraced marriage equality and voted to enshrine marriage equality into law (voters in Minnesota voted down an amendment that would prohibit marriage equality). At the same time, lower courts have consistently concluded that the Defense of Marriage Act is unconstitutional. Lower courts have similarly and consistently found that California's amendment banning same-sex couples from marriage is unconstitutional.

In both cases, the key justice to watch in any of these cases is Anthony Kennedy. The swing justice in most close cases, Kennedy wrote two of the only major Supreme Court decisions expanding rights for gay people in the last several decades—both the 2003 Lawrence v. Texas decision in which the Court found anti-sodomy laws to be unconstitutional, and the 1996 Romer v. Evans decision in which the Court found an antigay Colorado state constitutional amendment to be unconstitutional.

Throughout American history the Supreme Court has only issued a handful of rulings that address gay Americans' rights under the law. Given the paucity of gay rights cases before the nation's High Court over the years, ruling on either of these cases would shape sexual orientation law—and consequently the rights of gay people throughout the United States—for years to come.

Crosby Burns is a Research Associate for the LGBT Research and Communications Project at the Center for American Progress. Andrew Blotky is the Director of Legal Progress at the Center.

* In this column the term "gay" is used as an umbrella term for people who identify as gay, lesbian, or bisexual.

This article was published by the Center for American Progress.

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2008 Proposition 8 protest in Washington, D.C.

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