Article by Ari Ezra Waldman of

Many millions of Americans, tens of thousands of legally married same-sex couples, thousands of lawyers and legal academics, and just about all equal rights advocates await word from the Supreme Court on the Defense of Marriage Act (DOMA) and California’s Prop 8. The 2012-2013 term at One First Street is going to be groundbreaking for gay rights, not unlike 2003 (Lawrence v. Texas) and 1996 (Romer v. Evans). As Mr. Davidson reminded us in his excellent piece, there have still only been a handful of gay rights cases per se ever decided by the Supreme Court. Any new one will change the way we look at LGBT law.

The Defense of Marriage Act

DOMA will likely be up first. There are, in fact, four separate DOMA cases that could be combined into one omnibus case for review, or any one of them could be taken, heard, and decided, with the others remanded for review pursuant to that decision.

1. There’s Golinski, a San Francisco-based case brought by Lambda Legal in which a Ninth Circuit employee is challenging DOMA because it denies her the opportunity to put her same-sex spouse on her health insurance (the Ninth Circuit is an arm of the federal judiciary. In that case, District Judge Jeffrey White not only declared DOMA unconstitutional, but held also that heightened scrutiny is the appropriate standard of review for any state action that discriminates on the basis of sexual orientation. More on that later.

2. The Gay and Lesbian Advocates and Defenders’ (GLAD) Gill v. OPM (and its companion, Massachusetts v. Dep’t of Health and Human Services) is the furthest along. In Gill, the First Circuit used “rational basis plus” to determine that DOMA violated right to equal protection and due process due all married couples and the government had no legitimate basis for departing from the norm of equality.

3. Windsor v. United States, which was brought by the ACLU and just had its oral argument at the Second Circuit, is the story of Edie Windsor (left), who had to pay hundreds of thousands of dollars in federal taxes after her spouse died even though surviving spouses in opposite sex couples would not have had to pay.

4. And, finally, there is GLAD’s Pedersen v. United States, out of Connecticut, which raises the same issues.

All of these cases ask whether the federal government can deny to same-sex couples all the federal benefits that are automatically given to opposite-sex couples. No less important, some of them question the standard of review appropriate for laws that discriminate on the basis of sexual orientation: the lower the standard (say, rational basis), the easier for the law to pass constitutional scrutiny; the higher the standard (say, heightened scrutiny), the more the government has to justify its discrimination. That is, rather than just having to show some rational reason for DOMA (rational basis), the government would have to show a substantial connection between DOMA and an important government objective (heightened scrutiny).

You will recall that one of the many pro-LGBT steps President Obama has taken in the last four years — in addition to repealing Don’t Ask, Don’t Tell, passing a hate crime law, writing Medicaid rules to requires all hospitals to treat same-sex partners equally, giving prosecutorial discretion to stop the unjust deportation of gay foreign national spouses of American citizens, and, of course, declaring his support for the freedom to marry, among many others — was to declare that anti-gay discrimination requires heightened scrutiny and under that standard, DOMA is unconstitutional. As a result, his administration has refused to support this odious law in court, relegating that responsibility to the Republican-dominated House.

In Golinski, Judge White agreed with the President that antigay discrimination should get heightened scrutiny, but in Gill, the First Circuit declined to go that far, sticking with the more traditional rational basis “plus”. That strange term refers to a form of rational basis used for state action that discriminates rather than state action that regulates economic conduct, for example. The Supreme Court, then, faces the prospect of both having to decide the appropriate standard of review and the underlying constitutional issue. Of course, the Court could continue to muddle through — much like it did in Lawrence — when it decided a gay rights cases using byzantine and contradictory language leaving many scholars unsure of the operative standard of review. That seems the most likely (if unfortunate) result.

Many have speculated that the Court is more willing to take the DOMA cases rather than a case about gay marriage per se because the former are less controversial, easier to decide, less political, or more conducive to a lopsided majority. That’s all true: DOMA, as it is about the real and tangible benefits associated with marriage and the federal government’s obvious and unjustifiable discrimination against otherwise legally-married same-sex couples, never has to tough the fraught moral arguments associated with the freedom to marry.

What’s more, DOMA is unconstitutional from the left and from the right. The more liberal members of the Court can easily see that the federal government has no legitimate justification for denying things like Social Security benefits, health insurance, spousal sponsorship visas, and countless other benefits from married couples simply because those couples are made up of two men or two women. The “liberals” like Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan will strike down DOMA as a violation of equal protection and due process.

On the conservative side, DOMA is a blatant violation of the right’s talisman: states’ rights. Marriage law and family law, in general, has always been the exclusive responsibility of the states. Until Congress passed DOMA with lopsided (and terrified) majorities, the federal government had merely accepted the definitions of what constitutes a “marriage” from the states and meted out benefits thereto. As Massachusetts District Judge Joseph Tauro noted in his decision declaring DOMA unconstitutional, DOMA changed the status quo from one of state control of marriage law to one where the federal government imposes its own definition of marriage. That should only sit well with the justices whose hate binds their legal judgment.

I am confident the Court will take at least one of the DOMA cases and I am equally as confident that it will be struck down. Expect to hear about a hearing within the next four weeks (by the end of October), with oral arguments scheduled for an average of 2 months later (either right before or right after the Court’s Christmas holiday), and with a decision 3-4 months later (April or May 2013).

California’s Proposition 8

Where the Court has a clear reason to take the DOMA cases, it has no legal or political reason to take AFER’s case challenging Prop 8, currently captioned Perry v. Hollingsworth. The Ted Olson/David Boies (right) legal team agree, having filed a brief encouraging the Court to deny cert.

A note on the changing names of the Perry case. You may remember that the case used to be called Perry v. Schwarzenegger and then became Perry v. Brown. Some cases change names during their lives because elections replace the operative defendant: here, the case used to named the governor as defendant. But, now that Governor Brown is fully on our side, he would never appeal the favorable district or appellate court decision. So, Dennis Hollingsworth, the head of, took his place. You will recall that the Ninth Circuit found that he had standing to step into the shoes of the State.

In any event, the Supreme Court has no legal reason to take this case. Although the district court’s decision was quite broad, the Ninth Circuit’s affirmance was narrow, focused only on the unique trajectory of marriage rights in California. This restricts Perry’s reach to the thousands of gay persons in California (and any other state that similarly grants and then rescinds marriage rights, but that has yet to happen). That does not mean Perry is unimportant; it certainly means a great deal to Californians who want to get married and as an interpretation of Romer v. Evans, though I am on record saying I am dubious about the legitimacy of the Ninth Circuit’s take on Romer.

If the Court declines to hear Perry, then, pending a few housekeeping steps, the case is over and the freedom to marry returns to California.