WASHINGTON – Opening the door to a potentially historic step in the nation’s gay rights movement, the U.S. Supreme Court on Dec. 10 agreed to decide two constitutional challenges involving same-sex 
marriage.

The justices will review a decision by the U.S. Court of Appeals for the Second Circuit holding unconstitutional a section of the Defense of Marriage Act that defines marriage, for federal government purposes, as exclusively a union between one man and one woman (NYLJ, Oct. 19).

The challenge to DOMA was brought by Edith Windsor, an 83-year-old New Yorker who was forced to pay more than $363,000 in federal estate taxes after the death of Thea Seyer, whom she had married in Canada.

Windsor would not have had to pay any estate taxes if their marriage had been treated the same way as heterosexual couples.

The news was welcomed by lawyers for Windsor who successfully argued her case, first before Southern District Judge Barbara Jones (See Profile) and then before the Second Circuit: Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison and James Esseks of the American Civil Liberties Union.

Kaplan, who will argue Windsor’s case at the Supreme Court in March—her first argument before the high court—said her client was “clearly thrilled.”

“She’s had a long fight,” said Kaplan. “She’s been fighting for this for over half a lifetime” of “living with discrimination.”

“When Thea and I met nearly 50 years ago, we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay married couples should be treated equally, and not like second-class citizens,” Windsor said in a statement issued by the ACLU. “While Thea is no longer alive, I know how proud she would have been to see this day. The truth is, I never expected any less from my country.”

The second case accepted by the court is Hollingsworth v. Perry, which asks whether the Constitution’s Fourteenth Amendment bars California from defining marriage as between one man and one woman.

The California case involves a challenge to Proposition 8, a ballot proposition that ended same-sex marriage after the California Supreme Court had recognized it.

The Windsor case raises the question of whether §3 of DOMA violates the equal protection guarantee of the Fifth Amendment as applied to same-sex couples who are legally married under state laws. The Second Circuit adopted a heightened scrutiny standard in concluding that it did.

In both cases, the justices also will consider procedural problems that could affect their ability to reach the merits of the challenges.

In the California case, the court ordered the parties to brief and argue whether the proponents of Prop 8 had standing to appeal the lower court’s judgment.

In the Windsor case, the court added two questions: whether the Executive Branch’s agreement with the Second Circuit’s ruling deprives the justices of jurisdiction to decide the case, and whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives, which defended DOMA in the lower court, has 
standing.

The Perry and Windsor cases were among 10 same-sex marriage petitions for review that the justices considered at their Dec. 7 conference.

“It’s always a mistake to try and divine” the court’s reason for taking a case, but Kaplan, Windsor’s attorney, said her case “clearly presented the issue and the case comes from a circuit court decision, which is something the court would prefer.”

Esseks, her co-counsel, said that, aside from different fact patterns, the various DOMA challenges, including from the First Circuit and out of Connecticut, “all present the exact same legal issues.”

But Esseks also said Windsor was particularly compelling.

“Edie’s story presents a way to illustrate the harm that DOMA caused to married same-sex couples in a really moving way,” he said.

“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 it’s 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 §3 unconstitutional under the Constitution’s lowest scrutiny—rational basis review.

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.

Mayor Michael Bloomberg and City Council speaker Christine Quinn both issued statements backing the court’s action as did Attorney General Eric Schneiderman.

“The rights of men and women should not be dependent upon who they love and who they choose to spend their lives with,” said Bloomberg.

Congress enacted DOMA in reaction to a 1993 Hawaii Supreme Court decision that 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: §2, which says that no state has to recognize or give effect to the same-sex marriage law of another state, and §3, which defines marriage for all federal purposes.

Although §3 does not invalidate same-sex marriages in those states that permit them, it excludes those marriages from recognition for purposes of more than 1,000 federal statutes and programs 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 Justice Department defended the constitutionality of §3 as had the 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 §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 in to the defense vacuum. BLAG’s defense of §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.

Nine states, including New York, now recognize, same-sex marriage. By contrast, 37 states have passed constitutional amendments or statutes upholding traditional marriage. However, national polls have shown that a majority of Americans now back same-sex marriage.

@|Marcia Coyle is the chief Washington correspondent for ALM, the parent of the Law Journal. She can be contacted at mcoyle@alm.com.