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."
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It would have been good to publish the actual title of the Windsor case.
BLAG may have "stepped into the defense vacuum," but that's not the same thing as actually saying that they are the appellant who sought certiorari. If some Tea Party politician is the lead party of record against Windsor, I'd like to know who!
And, ideally, if BLAG is the lead party of record, I'd like to see the Democrats in BLAG petition to re-name the appellant "Single-party Legal Advisory Group" (instead of "Bipartisan"), so that it could be "SLAG v. Windsor." Has a nice ring to it.
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