By Sam Baker - 11/30/12 11:00 AM EST
The Supreme Court is expected to announce within days that it will consider whether same-sex marriage deserves equal treatment under federal law.
The justices will meet behind closed doors Friday to weigh a slew of appeals in same-sex marriage cases. Observers predict the justices will take up at least one of them — most likely a challenge to the Defense of Marriage Act (DOMA).
“Obviously, they have to take one of the DOMA cases,” said Michael Carvin, a partner at the law firm Jones Day and a former clerk to Justice Clarence Thomas.
Congress passed DOMA in 1996 to define marriage as a union between one man and one woman. The law prohibits states from providing certain benefits to same-sex couples, even when those states recognize gay marriage.
The Supreme Court is more likely to take cases in which courts have struck down a federal law, and two federal appeals courts have ruled DOMA unconstitutional.
A decision overturning DOMA would be a significant victory for gay rights advocate that would open the door to a slew of new legal protections and benefits for same-sex couples.
The leading DOMA cases that are before the court pit President Obama directly against House Republicans.
Oral arguments over a DOMA challenge would likely bring a rematch between the two lawyers who sparred over Obama’s healthcare law at the high court last summer — Solicitor General Donald Verrilli Jr. and former Solicitor General Paul Clement.
Justice Anthony Kennedy, the court’s traditional swing vote, is expected to cast the deciding vote on same-sex marriage. Many observers believe he’s likely to side with DOMA’s opponents if and when the law reaches the high court.
Although Kennedy was appointed by a Republican president and votes frequently with the court’s conservative bloc, he has also sided with the more liberal justices on cases involving individual liberty — including a 2003 case overturning anti-sodomy laws in Texas.
“He’s been the predominant moving force in the court’s steady march toward constitutionalizing gay rights,” Carvin said of Kennedy.
Legal experts are convinced the high court will wade into the debate over DOMA, and are waiting to see which case lands on the docket.
One case involves a New York woman who inherited a home after her wife died, but was unable to claim a tax exemption for surviving spouses because of DOMA. She owed thousands of dollars in taxes that a heterosexual couple would not have owed.
The 2nd U.S. Circuit Court of Appeals applied an especially rigorous legal test in that case and said DOMA is unconstitutional because there is a history of discrimination against homosexual people. States have traditionally defined marriage, and the court said it looked “with a cold eye” at what it called an “unprecedented intrusion” on state regulations.
Another DOMA case before the Supreme Court comes from Massachusetts, where the state complained that the law prohibits it from combining the incomes of a same-sex couple when determining whether they are eligible for Medicaid. The state has had to give benefits to people who shouldn’t have been eligible because of DOMA, Massachusetts says.
The Supreme Court may be more likely to accept the New York case, mainly because Justice Elena Kagan might have to recuse herself if the Massachusetts lawsuit is considered. Regardless, Carvin said, the justices can draw from either lower court’s ruling.
In addition to the DOMA cases, the court’s agenda Friday includes a challenge to California’s Proposition 8, which bans same-sex marriage. Striking down Proposition 8 would likely be seen as more dramatic than overturning DOMA, because it would limit the states’ ability to restrict same-sex marriage, not just the federal government’s power.
Some legal experts said overturning DOMA might be an easier call for Kennedy than Proposition 8, given that it would not affect the powers of the states.