http://www.nytimes.com/2012/12/08/us/supreme-court-agrees-to-hear-two-cases-on-gay-marriage.htmlSupreme Court Will Take Up Two Cases on Gay Marriage
By ADAM LIPTAK
Published: December 7, 2012 350 Comments
FACEBOOK
TWITTER
GOOGLE+
SAVE
E-MAIL
SHARE
PRINT
REPRINTS
WASHINGTON — The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.
Enlarge This Image
Kimberly White/Reuters
Theodore B. Olson, left, and David Boies in June. Antagonists in Bush v. Gore, they are united in the California marriage case.
Related
Support for Gay Marriage Growing, but U.S. Remains Divided (December 8, 2012)
Two Laws Are Welcomed After Midnight in Seattle (December 7, 2012)
Connect With Us on Twitter
Follow @NYTNational for breaking news and headlines.
Twitter List: Reporters and Editors
Enlarge This Image
Chester Higgins Jr./The New York Times
Edith Windsor of New York sued to be treated as a surviving spouse.
Readers’ Comments
Readers shared their thoughts on this article.
Read All Comments (350) »
One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.
The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.
The court’s move comes against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. After the elections last month, the number of states authorizing same-sex marriage increased by half, to nine.
The court’s docket is now crowded with cases about the meaning of equality, with the new cases joining ones on affirmative action in higher education and on the future of the Voting Rights Act of 1965. Decisions in all of the cases are expected by June.
The new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.
A federal judge in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.
A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on narrower grounds that seemed calculated to avoid Supreme Court review or, at least, attract the vote of the presumed swing member of that court, Justice Anthony M. Kennedy.
Judge Stephen R. Reinhardt, writing for the majority, relied heavily on a 1996 majority opinion from Justice Kennedy in Romer v. Evans, which struck down a Colorado constitutional amendment that had banned the passage of laws protecting gay men and lesbians. The voter initiative in California, known as Proposition 8, had done something similar, Judge Reinhardt wrote.
That reasoning, he added, meant that the ruling was confined to California.
“We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts,” he wrote.
“For now,” he said, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.”
The Supreme Court has several options in reviewing the decision. It could reverse it, leaving California’s ban on same-sex marriage in place. It could affirm it on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.
A plaintiff in the case, Kristin M. Perry, said she hoped that the justices would answer yes to that last question. “There is nothing more important,” she said, “than a state ridding itself of discriminatory laws that hurt its citizens every day.”
Brian S. Brown, the president of the National Organization for Marriage, said the court should address the broader question but say no. “What’s at stake,” he said, “is whether the Constitution demands a redefinition of marriage and whether states can even vote on this issue.”
The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for the purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)
The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.
Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston. The Windsor case made its way to the Supreme Court unusually quickly because the parties had filed an appeal from the trial court’s decision in the case, which also struck down the law, even before the appeals court had ruled.
Ms. Windsor, 83, said she was “absolutely thrilled” that the court had agreed to hear her case, adding, “I wish Thea was here to see what is going on.”
There was reason to think that Justice Elena Kagan was not free to hear an appeal from the Boston case because she had worked on it or a related case as United States solicitor general. The current solicitor general, Donald B. Verrilli Jr., gave the court a number of other options, including Windsor, probably partly to make sure that a case of such importance could be heard by a full nine-member court.
The Obama administration’s attitude toward same-sex marriage and the 1996 law has shifted over time. Until last year, the Justice Department defended the law in court, as it typically does for all acts of Congress. In February 2011, though, Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that the law was unconstitutional and unworthy of defense in court, though he added that the administration would continue to enforce the law.
In May of this year, Mr. Obama announced his support for same-sex marriage.
After the Justice Department stepped aside, House Republicans intervened to defend the law. They are represented by Paul D. Clement, a solicitor general in the Bush administration.
The Windsor case is thus likely to feature a rematch between Mr. Clement and Mr. Verrilli, who were antagonists this year in the arguments over Mr. Obama’s health care law. The two cases are likely to be argued in late March, about a year after the health care case was heard.
A version of this article appeared in print on December 8, 2012, on page A1 of the New York edition with the headline: JUSTICES TO HEAR TWO CHALLENGES ON GAY MARRIAGE.
Poll