The Supreme Court’s electronic docket, as noted by the SCOTUS blog, that California’s famous “Proposition 8″ may be the first case in which the court will review the constitutionality of the Defense of Marriage Act (DOMA). It has a long way to go as this only means that the case is set for conference, but it seems likely that the Court will weigh in on this issue in this term as there are numerous cases working their way up through the lower courts.
These DOMA cases do not require the Justices to rule on whether there is a legal right of marital equality for gays and lesbians because the challengers to Section 3 have already been married legally under the laws of their own states.
The one DOMA case distributed for the September 24 Conference is Windsor v. United States. That is a request by a New York woman, now a widow, seeking to avoid paying federal estate taxes on the estate of her former same-sex spouse. They were married in Canada before New York legalized such marriages. The petition in that case asked the Supreme Court to hear it without waiting for review by the Second Circuit Court in New York. The federal government plans to file a similar petition in that case, probably soon.
The “Proposition 8″ case now set for the first Fall Conference is Hollingsworth v. Perry. In that case, the Ninth Circuit ruled that, if a state once grants a right to same-sex marriage, it is unconstitutional to take away that right, at least when the decision to do so was the result of hostility to the sexual identity of gays and lesbians.
The third case now listed for the September Conference is Brewer v. Diaz. That does not address same-sex marriage explicitly; rather, it tests whether a state, refusing to allow gays and lesbians to marry, may deny them marital benefits if one member of the couple is a state employee, while providing those benefits to state workers who are in opposite-sex marriages. The Ninth Circuit has ruled that such differing treatment is unconstitutional.