Supreme Court to hear challenges to DOMA, Prop 8

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David Demirbilek Contributor
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The Supreme Court agreed Friday to take up two potentially landmark cases on same-sex marriage.

The Court will hear arguments on the constitutionality of both the Defense of Marriage Act (DOMA), which bars federal recognition of same-sex marriage, and Proposition 8, a California voter initiative banning same-sex marriages in the state by constitutional amendment.

The DOMA case the Court agreed to hear is United States V. Windsor, Edith S., et al. The case is on appeal from the U.S. Court of Appeals for the Second Circuit in New York.

The appeals court in Windsor ruled that Section 3 of DOMA — the provision that withholds federal recognition from same-sex nuptials — is unconstitutional on grounds of equal protection. It found that laws discriminating against homosexuals require heightened constitutional scrutiny under the Equal Protection Clause, an unprecedented move in the same-sex marriage debate in the courts.

Federal courts have found Section 3 of DOMA to be unconstitutional in seven other instances as well.

Conservative legal virtuoso Paul Clement, the attorney who challenged the constitutionality of the Affordable Care Act at the Supreme Court this past summer, argued for the constitutionality of DOMA at the appellate level and is expected to do so at the Supreme Court as well.

The Court will take up the constitutionality of California’s Proposition 8 in the case Hollingsworth, Dennis, et al. v. Perry, Kristen M., et al. The case comes up from appeal out of the U.S. Court of Appeals for the Ninth Circuit, in which liberal firebrand Judge Stephen Reinhardt found that California had “no rational basis” for passing Proposition 8.

The Court did not decide which date it would schedule for oral arguments for the cases, although it is expected by court watchers to make a decision in January to ultimately hear the cases in March.

The Court’s order can be found here.

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