Esseks said the cases are different, but a decision in favor of gay marriage in Hollingsworth, depending on how far the court goes, would clear the table for Windsor.
"If you think that the federal Constitution requires every state in the country to allow same-sex couples to marry, there's no way you can possibly think that DOMA is constitutional," he said. But, he added, "the issues are different in the two cases in the sense that the remedies in the cases are potentially different."
Dozens of amici have weighed in on both sides of both cases.
For Windsor, the latest boost came yesterday, when scores of companies, law firms, banks and other businesses filed in support of affirming the Second Circuit.
Filed by counsel of record Sabin Willett of Bingham McCutchen in Boston, the brief argues that DOMA imposes compliance burdens on employers who say their success depends on a "workplace ethos of transparent fairness" and that DOMA burdens both them and their employers and "strains the employer/employee relationship."
Willett also writes that "DOMA forces amici to affirm discrimination they regard as injurious to their corporate missions and contrary to non-discrimination laws and policies."
@|Mark Hamblett can be contacted at mhamblett@alm.com.
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