Marriage advocates are anxiously watching the Supreme Court to see which cases it will take up — or turn down — regarding the constitutional status of gay marriage.
In its first round of announced cases Tuesday, the high court did not include Defense of Marriage Act (DOMA) lawsuits or a high-profile California case seeking to repeal the state’s voter-passed Proposition 8, which defines marriage as the union of one man and one woman.
The next Supreme Court announcements are expected Monday, which is the first day of the new session and traditionally the day the high court reveals which cases it will not hear. Although justices can decide to put off a decision on a case, at least four justices must agree on a case for it to go forward.
Speaking before students at the University of Colorado in Boulder on Sept. 19, Justice Ginsburg was asked about equal protection and sexual orientation. According to an Associated Press report, she declined to answer that question, but, referring to DOMA, she said: “I think it’s most likely that we will have that issue before the court toward the end of the current term.”
California proponents of Prop. 8 are hoping the Supreme Court will take their case, Hollingsworth v. Perry.
“Given the nationwide implications and importance of our legal appeal, as well as the clearly erroneous conclusions of the liberal 9th Circuit Court of Appeals striking down the will of the voters, we feel very strongly that the court will grant our petition and agree to review the lower courts’ decisions,” Andy Pugno, general counsel of ProtectMarriage.com, said in an email Tuesday.
However, the American Foundation for Equal Rights (AFER), the group challenging Prop. 8, is hoping that Monday, the high court will “deny cert” to the Perry case. If that happens, the 9th U.S. Circuit Court of Appeals can issue a procedural mandate and open the way for gay marriage to resume in California, said AFER, whose attorneys in August filed papers urging the Supreme Court not to hear the case.
The high court could hear other cases seeking to overturn a section in DOMA that says that under federal law, marriage and spouses refer only to the unions of a man and a woman.
One case, Windsor v. United States, is scheduled for a hearing Thursday before the 2nd Circuit Court of Appeals.
The case is brought by Edith Windsor, a New York woman who married Thea Spyer in Canada in 2007. When Ms. Spyer died in 2009, the federal government did not recognize her Canadian marriage, and assessed Ms. Windsor, now 83, some $353,000 in taxes to inherit properties that the women co-owned. Ms. Windsor has argued that if she were married to “Theo” instead of “Thea,” she would have owed nothing to the federal government.
In June, a federal district court ruled that DOMA was unconstitutional. The states of Vermont, New York and Connecticut, which have legalized gay marriage, and 145 members of Congress have now joined Ms. Windsor in asking that DOMA be overturned.
DOMA is being defended by a team led by former Solicitor General Paul Clement on behalf of the Bipartisan Legal Advisory Group of the House of Representatives. Groups supporting DOMA include 14 states’ attorneys general, former U.S. Attorneys General Edwin Meese and John Ashcroft, and several traditional-values groups.
Another DOMA case is Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health and Human Services. Nancy Gill and her co-plaintiffs won in both federal district court in 2010 and in the 1st Circuit Court of Appeals in May.
Another case is led by Joanne Pedersen, who was prevented from adding her legal wife, Ann Meitzen, to her federal health insurance. Ms. Pedersen and several other gay plaintiffs won in federal district court in July.