Same sexIt is likely that we will learn this week which cases, if any, the U.S. Supreme Court will hear concerning marriage equality for gays and lesbians. The justices were expected to consider this at their conference last Friday and unless they postpone the decision, they likely will announce it today or next Monday. Interestingly, there are six different cases before it, each of which would require the court to consider whether gays and lesbians have a constitutional right to marry.

Four of the cases involve the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA), which Congress enacted in 1996. The section states: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

There are more than a thousand references to marriage in federal laws. Section 3 prevents same-sex married couples from filing joint federal tax returns, prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, and leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.

Of the four cases, two involve federal courts of appeals that have struck down DOMA’s Section 3, and two involve district courts that have done so and from which there is a request for the Supreme Court to grant review before a court of appeals decision. In Massachusetts v. U.S. Dept. of Health and Human Services, often referred to as the Gill case, the 1st U.S. Circuit Court of Appeals this year became the first federal appellate court to strike down Section 3. It emphasized that marriage is a matter traditionally regulated by the states and found that Section 3 denies equal protection to gays and lesbians.

In Windsor v. United States, the 2nd U.S. Circuit Court of Appeals applied intermediate scrutiny--that the law could be upheld only if it was substantially related to an important government purpose--and in October struck down Section 3.

The other two cases decided this year are from federal district courts that also struck down Section 3: Pedersen v. Office of Personnel Management, decided by the district court in Connecticut; and, Golinski v. Office of Personnel Management, by the district court in the Northern District of California. Supreme Court Rule 11 allows the high court to take a case before a decision by the federal court of appeals "upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this [c]ourt." Although it is unusual, such review before a court of appeals decision has occurred in such high profile cases as United States v. Nixon in 1974, and Youngstown Sheet & Tube Co. v. Sawyer in 1952.

It is highly likely that the Supreme Court will take at least one of these cases challenging DOMA’s Section 3. The court virtually always hears cases where a lower court declared a federal law unconstitutional. Which of these cases is taken may be affected by the possibility of Justice Elena Kagan's recusal.

While she was solicitor general, the Justice Department filed briefs in a case, Smelt v. United States, defending Section 3. This was before the Obama administration changed its position and refused to defend the law. At her confirmation hearings, Kagan said that she "reviewed some briefs" and "participated in some discussions" about the Smelt case and said that her "participation in that case was sufficiently substantial that I would recuse myself if I were confirmed and this case were to come before the court." When asked about whether she had reviewed briefs or had taken part in any discussions about the Gill case, she replied: "Yes. I believe that discussion about Gill overlapped with discussions about Smelt."

There is no indication that Kagan participated in any discussions concerning Windsor, Pedersen, or Golinski, so it may be that the court will take one of these cases instead of Gill. Although the underlying facts vary among these cases, they all present the same legal issue: is Section 3 of DOMA constitutional?

The court also has before it a petition to review this year’s decision by 9th U.S. Circuit Court of Appeals in Perry v. Brown, which invalidated California's Proposition 8. In May 2008, the California Supreme Court held that the denial of marriage to gays and lesbians violated the California Constitution. In November 2008, California voters passed an initiative to amend the California Constitution to overturn this decision and to provide that marriage in California must be between a man and a woman.

In 2010, federal district court Judge Vaughn Walker declared Proposition 8 unconstitutional as violating equal protection and as infringing the fundamental right to marry. In February 2012, the 9th Circuit affirmed, though on narrower grounds. The appeals court held that once California extended the right to marry to both opposite-sex and same-sex couples, to take it away from only the latter denied equal protection. The 9th Circuit said that there was no legitimate purpose in doing this, especially in light of California extending almost all of the legal benefits of marriage to same sex couples through domestic partnerships.

The appeals court's reasoning affects only California because it is the only state so far to extend marriage equality to gays and lesbians and then rescind that right. Perhaps because of this narrow focus the Supreme Court will be less likely to take this case. On the other hand, the underlying issue raised by the 9th Circuit's approach is a difficult one: If a state grants a right not required by the Constitution, when may it be rescinded?

Finally, the court has before it a petition for review in Diaz v. Brewer, decided in 2011, in which the 9th Circuit upheld a preliminary injunction against an Arizona statute limiting eligibility for family health care coverage to married heterosexual employees. The 9th Circuit ruled that denying benefits to same sex couples failed rational basis review.

The issues and the procedural posture in these cases are different, but they all put before the court the issue of marriage equality for gays and lesbians. The court will be considering these petitions for certiorari just a few weeks after voters in Maine, Maryland, and Washington approved initiatives to approve same sex marriage in those states and voters in Minnesota rejected an initiative to amend the state constitution to require that marriage be between a man and a woman.

It is highly likely that the Supreme Court will weigh in this term and we'll know very soon which case or cases it will be considering.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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