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, NeJaime 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 §3 unconstitutional under the Constitution's lowest scrutiny—rational basis review.
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, as the Ninth Circuit did, to rule narrowly.
Mayor Michael Bloomberg and City Council speaker Christine Quinn both issued statements backing the court's action as did Attorney General Eric Schneiderman.
"The rights of men and women should not be dependent upon who they love and who they choose to spend their lives with," said Bloomberg.
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: §2, which says that no state has to recognize or give effect to the same-sex marriage law of another state, and §3, which defines marriage for all federal purposes.
Although §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.
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Avon
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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