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Supreme Court to Decide Whether to Hear DOMA and Prop 8 Marriage Equality Cases on Friday

This Friday, November 30, the Supreme Court will decide whether to hear the so-called marriage equality cases: suits challenging the legality of Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as between one man and one woman at the federal level, and Proposition 8, the California provision banning same-sex marriage there. The Court will announce next Monday whether it will hear any of those cases.

Each of the laws has been struck down by lower courts. The First and Second Circuit as well as a federal district court in the Northern District of California invalidated Section 3 of the DOMA under the federal equal protection clause, while the Ninth Circuit ruled that Proposition 8 was constitutionally impermissible for the same reason.

The Supreme Court was originally slated to consider whether to hear the marriage equality cases at its conference on November 20, but for unknown reasons moved the cases to the November 30 conference. Some conjecture that the Court is pondering which case would be the best vehicle for the issue out of the ten cases involving challenges related to different same-sex marriage restrictions for which petitions for certiorari were filed, the sheer number making the decision incredibly complex.

Some commentators have suggested that the Second Circuit’s opinion, which held that DOMA was subject to heightened scrutiny, or the Ninth Circuit’s decision striking down Prop. 8, may present better fact patterns for deciding the issue. In addition, Justice Kagan may not have to recuse herself in the Second Circuit DOMA case or the Ninth Circuit Prop. 8 case; in contrast, in the First Circuit case, she has already stated that her involvement in the case below, as Solicitor General, would prevent her from joining the other Justices. (The Center joined a friend-of-the-court brief in the First Circuit case in support of marriage equality.)

No matter which case or cases the Court decides to hear, if it chooses to hear any, its decision will likely be a blockbuster. Stay tuned for updates!

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