Supreme Court To Hear Gay Couples' Marriage Cases

Challenge to Defense of Marriage Act will pit the U.S. government on both sides of the issue. Challenge to California's Proposition 8 — and, possibly, the constitutionality of gay marriage bans — to be heard as well.

WASHINGTON — The U.S. Supreme Court will decide whether California's Proposition 8 marriage amendment is constitutional and whether the federal government can refuse to recognize gay couples' marriages for tax purposes and other reasons, the court announced Friday.

Decisions in both cases, by the court's practice, are expected by the end of June. The cases could go as far as resolving definitively whether gay and lesbian couples can be banned from — or the court could put off any answer on procedural grounds.

The long-awaited announcement, first reported by SCOTUSblog, puts Section 3 of the Defense of Marriage Act, which defines "marriage" and "spouse" in all federal laws as being limited to marriages between one man and one woman, squarely before the nine justices in the case of Edith Windsor.

The court also accepted the request by the supporters of California's Proposition 8 that the justices hear an appeal of that case, in which the Ninth Circuit Court of Appeals struck down the law as unconstitutional.

In addition to the questions about whether the laws are constitutional, the court has asked the parties to respond to questions about "standing," a constitutional limit on who can bring a case before the court because of a constitutional limit that courts only can hear actual "cases" and "controversies." If a party doesn't have standing to bring an appeal, the court cannot hear an appeal.

Windsor sued in 2010 after she was forced to pay more than $350,000 in estate taxes after the death of her wife, Thea Spyer. Had either Windsor or Spyer been a man, her lawyers explain that Windsor would not have had to pay the tax on the estate. Windsor's case was brought by the American Civil Liberties Union and Paul, Weiss, Rifkind, Wharton & Garrison LLP, with lead attorney Roberta Kaplan having successfully argued before the Second Circuit Court of Appeals for Windsor.

Because the Obama administration decided in 2011 to stop defending DOMA, House Republican leaders, through their majority on the House Bipartisan Legal Advisory Group, have taken up the defense of the law. The Supreme Court has asked whether they have standing to do so.

The court takes on consideration of DOMA's constitutionality after two federal appeals courts have declared it to be unconstitutional this year. A handful of other federal trial court judges have concurred, and two of those cases also were presented as possible options for the court.

The court takes on Proposition 8 after the Ninth Circuit Court of Appeals declared it to be unconstitutional. The challenge was brought by the American Foundation for Equal Rights, and has been led by lawyers Ted Olson and David Boies.

The question about standing is raised in the Proposition 8 case because the proponents of the Proposition 8 initiative, and not the state defendants named in the lawsuit, are the party seeking Supreme Court review. In the Proposition 8 case, the California Supreme Court was asked to rule on whether California would treat the proponents as being legally empowered to defend an initiative post-enactment, and they answered the question yes. That answer does not, however, resolve the question for the Supreme Court, must make its own decision about whether that is sufficient for federal standing purposes.

The court likely will hear arguments on the challenges in March and generally decides all pending cases by the end of June of any year. Because of the standing questions, the justices could decline to answer the substantive questions about either law.

Friday's Supreme Court Order

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