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U.S. v. Windsor: Will Heightened Scrutiny Stand?

By Robyn Hagan Cain | Last updated on

The Supreme Court heard oral arguments Tuesday in Hollingsworth v. Perry. In Hollingsworth, the Court is considering whether California's Proposition 8 violates the Equal Protection Clause, and whether the Court should even decide the case at all. Don't get your hopes up for a sweeping proclamation in favor of gay marriage; the Court seems hesitant to give such a "new" concept the go-ahead, Reuters reports.

But that's not necessarily an indication of how the Court will proceed in the Defense of Marriage Act (DOMA) challenge, U.S. v. Windsor .

On Wednesday, the focus will shift to Windsor, in which the Court will mull whether DOMA Section 3 is unconstitutional.

Right now, DOMA bars legally married same-sex couples from receiving federal benefits. In Edie Windsor's case, that meant federal estate taxes after her spouse died because her marriage wasn't legally recognized. In other situations, it means that federal employees with same-sex spouses cannot share their health insurance and certain other medical benefits with same-sex spouses.

So far, the First and Second circuits have agreed that DOMA is unconstitutional. In Windsor, the Second Circuit ruled that the law was an "unprecedented intrusion into an area of traditional state regulation" and subject to heightened scrutiny because:

  1. Homosexuals as a group have historically endured persecution and discrimination.
  2. Homosexuality has no relation to aptitude or ability to contribute to society.
  3. Homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages.
  4. The class remains a politically weakened minority.

Even if the Supreme Court decides in the Prop 8 case that states can limit marriage within their borders to heterosexual couples, the Court could still strike DOMA. That would create a straightforward standard: If your state recognizes your marriage, then you get federal benefits. But the Bipartisan Legal Advisory Group (BLAG) says that standard isn't fair, because it would put homosexual couples in the states that recognize gay marriage in a more favorable position than the couples in states that limit the definition of marriage.

Of course, the Court still has an out: Instead of deciding whether DOMA is constitutional, it could simply say that it can't decide. Harvard Professor Vicki Jackson, who was appointed by the Court to argue the standing issues, offers three options: there's no case or controversy because the Obama administration agrees with the DOMA challengers, it's imprudent for the Court to decide the case, or BLAG lacks standing to defend DOMA.

As we did with the Prop 8 challenge, we're reviewing the possible outcomes in the DOMA case:

  1. The Court strikes DOMA under the Second Circuit's heightened scrutiny standard.
  2. The Court strikes DOMA under a less restrictive standard.
  3. DOMA survives.
  4. The Court rules that it can't decide the case based on Article III limitations.

Court will convene Wednesday, March 27, at 10 a.m. Recordings of the oral arguments will be available online by 2 p.m. Wednesday.

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