Opening the door to a potentially historic step in the nation’s gay rights movement, the U.S. Supreme Court on Dec. 7 agreed to decide two constitutional challenges involving same-sex marriage.

The justices will hear arguments in Hollingsworth v. Perry, which asks whether the U.S. Constitution’s 14th Amendment bars California from defining marriage as between a man and a woman. The second challenge is U.S. v. Windsor, raising the question of whether Section 3 of the federal Defense of Marriage Act (DOMA) violates the equal-protection guarantee of the Fifth Amend­ment as applied to same-sex couples who are legally married under their state laws.

In both cases, the justices also will consider procedural problems that could affect their ability to reach the ­merits of the challenges. In the Perry case, which stems from California’s passage of Proposition 8, a ban on same-sex marriage, 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 U.S. Court of Appeals for the Second Circuit that DOMA’s Section 3 was unconstitutional 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 conference on Friday. Perry stems from a ruling by the Ninth Circuit holding that Prop. 8 was unconstitutional because it took away same-sex couples’ right to marry—which the California Supreme Court had previously found constitutional—based on animus toward homosexuals. In Windsor, the Second Circuit held Section 3 of DOMA unconstitutional after applying heightened scrutiny to the provision.

“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 appeals.”

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, he 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 Section 3 unconstitutional under the Constitution’s lowest scrutiny—rational-basis review.

The standing question in the Prop. 8 case could prevent the justices from reaching the merits, both men agreed. If the court thought the standing issues in Windsor were substantial, NeJaime added, it could have granted more than one DOMA case since there was at least one other petition that the parties agreed did not present procedural problems.

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 narrowly as did the Ninth Circuit.

Heightened stakes

The controversial issue of same-sex marriage heightens the stakes in a Supreme Court term already containing hot-button issues involving affirmative action and voting rights, issues that could sharply divide the justices. A final decision in the DOMA case will have immediate ramifications for same-sex couples in the nine states where voters or legislators have legalized their marriages—Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington—and the District of Columbia. Depending on how the court rules in Perry, the impact could be restricted to California or could be broader.

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: Section 2, which says that no state has to recognize or give effect to the same-sex marriage law of another state, and Section 3, which defines marriage for all federal purposes. Although Section 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.

A reversal on DOMA

In the first two years of the Obama administration, the Department of Justice defended the constitutionality of Section 3 as had the previous Bush administration. However, in February, Attorney General Eric Holder Jr. announced that President 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 Section 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 into the defense vacuum. The BLAG’s defense of Section 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.

During their Dec. 7 conference, the justices reviewed 10 petitions concerning same-sex marriage, eight of which involved the constitutionality of DOMA. The court’s Dec. 7 order did not dispose of the remaining petitions.

Three of the eight DOMA petitions stem from a ruling by the First Circuit, which was the first appellate court to find Section 3 unconstitutional. The three petitions are Bipartisan Legal Advisory Group v. Gill; Massachusetts v. U.S. Dept. of Health & Human Services; and U.S. Dept. of Health & Human Services v. Massachusetts. Defending the First Circuit decision are Gay & Lesbian Advocates & Defenders on behalf of Nancy Gill and a number of gay and lesbian married couples and their survivors, and the United States. The petition by the state of Massachusetts, which also had challenged Section 3 in the First Circuit, urges the justices to consider the state’s 10th Amendment and spending clause claims against DOMA if they grant review in Gill.

Four of the eight DOMA petitions arise from cases in the Second Circuit. That appellate court struck down Section 3 in a suit brought by the American Civil Liberties Union on behalf of Edith Windsor who, when her spouse died and left her estate to Windsor, had to pay $360,000 in federal estate taxes because of Section 3. Windsor figures in two petitions: U.S. v. Windsor and Windsor v. U.S. The two other petitions are from a federal district court in Connecticut. The eighth and final DOMA petition on the justices’ table on Friday was from the U.S. District Court of the Northern District of California.

Before the justices granted review in Windsor, the various parties to the DOMA cases had argued to the justices on which of the petitions would be the best to take. House Republican ­leaders urged the justices to deny review in Windsor, saying that case had procedural problems and the Gill case from the First Circuit was a superior vehicle for resolving the constitutional issue. However, the United States argued in a petition that the Windsor case was more appropriate than Gill for review. “In particular, the court of appeals in Massachusetts (in Gill) was constrained by binding circuit precedent as to the applicable level of scrutiny, whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue,” argued the government.

The Second Circuit in the Windsor case had applied heightened scrutiny—the government’s favored standard—to Section 3.

Marcia Coyle writes for The National Law Journal, a Daily Report affiliate.