<b><i>BREAKING NEWS:</b></i> Supreme Court to Hear Historic Same-Sex Marriage Cases

The Perry and Windsor cases were among 10 same-sex marriage petitions for review that the justices considered at their conference on Friday. Perry stems from a ruling by the U.S. Court of Appeals for the Ninth Circuit holding that Prop 8 was unconstitutional because it took away same-sex couples' right to marry–which the state Supreme Court had previously found constitutional'based on animus towards homosexuals. InWindsor, 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 appeal.”

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 its time to say sexual orientation classifications merit heightened scrutiny.”

On the other hand, NeJaime 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, Smith and NeJaime agreed. If the Court thought the standing issues in Windsor were substantial, added NeJaime, 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.

The question in Perry gives the justices room to rule broadly or, as the Ninth Circuit did, to rule narrowly.

The controversial issue of same-sex marriage heightens the stakes in a Supreme Court term already containing hot-button issues involving affirmative action and voting rights, issues that could sharply divide the justices.

A final decision in the DOMA case could have immediate ramifications for same-sex couples in the nine states where voters or legislators have legalized their marriages — Connecticut, Maryland, Maine, Massachusetts, Iowa, New York, New Hampshire,Vermont, Washington'and the District of Columbia. Depending on how the Court rules in Perry, the impact could be restricted to California or could be broader.

Congress enacted DOMA in reaction to a 1993 Hawaii Supreme Court decision which held that the denial of marriage licenses to same-sex couples would violate the state constitution. Opponents of gay marriage feared that Hawaii would legalize those marriages and that other states would follow or be forced to recognize them. Amidst those fears and furor, President Bill Clinton signed DOMA into law in 1996. Hawaii never legalized same-sex marriages.

DOMA has two major sections: Section 2, which says that no state has to recognize or give effect to the same-sex marriage law of another state, and Section 3, which defines marriage for all federal purposes.

Although Section 3 does not invalidate same-sex marriages in those states that per'mit them, it excludes those marriages from recognition for purposes of more than 1,000 federal statutes and pro'grams whose administration turns in part on individuals' marital status, including federal employment, immigration, Social Security, public health and welfare benefits, tax, and other laws.

In the first two years of the Obama Administration, the Department of Justice defended the constitutionality of Section 3 as had the previous Bush Administration. However, last February, Attorney General Eric Holder Jr. announced that President Barack Obama had instructed him to no longer defend the law. The president, he said, had concluded “that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.”

Holder added that Section 3 would continue in effect and would be enforced by the executive branch until repealed by Congress or struck down by the Supreme Court. After the announcement, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) stepped into the defense vacuum. The BLAG's defense of Section 3, however, is not bipartisan. House Democratic leaders in the group refused to participate. House Republican leaders are now the exclusive defenders of DOMA in all pending Supreme Court petitions through their counsel, former Bush Solicitor General Paul Clement of Washington's Bancroft.

During their December 7 conference, the justices reviewed 10 petitions concerning same-sex marriage, eight of which involved the constitutionality of DOMA. The Court's order did not dispose of the remaining petitions.

Marcia Coyle writes for Legal Times, the Washington, DC-based ALM affiliate of The Matrimonial Strategist. This article originally appeared on The BLT: The Blog of Legal Times.