Hollingsworth v. Perry is the appeal by proponents of California's Proposition 8, which bans same-sex marriage in that state. The Ninth Circuit ruled narrowly that Prop. 8 violated the Constitution because once the right to marry had been given to same-sex couples, as it had been given, the right could not be withdrawn.
However, the Prop. 8 proponents, represented by Charles Cooper of Cooper & Kirk, ask the Supreme Court a broad question: whether the equal protection clause of the 14th Amendment prohibits the state from defining marriage as between a man and a woman. Prop. 8 opponents are represented by Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner. Olson argues the petition should be denied because there is no conflict among the circuits; the Ninth Circuit decision is a straightforward application of the justices' precedent in Romer v. Evans, and the Prop. 8 proponents have a standing problem.
"Brewer is different because it doesn't raise a marriage question at all," said NeJaime. "It's an interesting case when put side by side with the Prop. 8 case. Both raise the question when can a state take away what it has given, even if what was given was not constitutionally required. When can a state discriminate against same-sex couples based on sexual orientation?"
Brewer is the wild card and has "broad implications," said Smith. "The issue of marriage rights gets in the back door."
NeJaime suggested that voter approval of same-sex marriages in four states in the recent election may cut against review of Prop. 8. "It suggests there is a clear trend of states recognizing same-sex marriage and now we see it moving past legislatures and towards popular votes," he explained. "That being said, it only takes four votes to grant cert, and I would think three of the more conservative justices might want to strike down the Ninth Circuit on this."
There are three petitions out of the First Circuit, stemming from its ruling that Section 3 of DOMA violates equal protection as applied to legally married same-sex couples but does not run afoul of the 10th Amendment and the spending clause.
In Bipartisan Legal Advisory Group of the House of Representatives (BLAG) v. Gill, House Republican leaders, represented by Paul Clement of Bancroft, challenge the First Circuit ruling as well as what they call that court's "previously unknown standard of equal protection review." The counsel for the DOMA challengers is Mary Bonauto of GLAD. Clement represents BLAG in all petitions in which BLAG is a party or has intervened to defend DOMA.
The two other petitions—Dept. of Health & Human Services v. Massachusetts and Massachusetts v. Dept. of H&HS—both urge the justices to grant review of the DOMA question. Massachusetts, represented by Maura Healey, chief of the Public Protection and Advocacy Bureau, also urges the court to answer the 10th Amendment and spending-clause issues pressed in the lower courts by the state.
In U.S. v. Windsor and Windsor v. U.S., Edith Windsor and the federal government urge the court to grant review of the Second Circuit's ruling that Section 3 violates equal protection. The circuit court applied heightened scrutiny—the preferred test by the Obama Justice Department.
Windsor's counsel is Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, working with the American Civil Liberties Union. The federal government recently told the court that of all the DOMA petitions, it prefers review in Windsor because of the heightened scrutiny standard used by the appellate court. BLAG's Clement, however, has objected, saying Gill is "far superior" and does not have a standing problem that he claims exists in Windsor.
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