The Supreme Court justices are set to meet on Friday to decide whether or not they will take on gay marriage, and all signs point to a likely decision that the court will hear a challenge to the Defense of Marriage Act, otherwise known as DOMA.
Of the 10 gay marriage cases pending before the court, eight deal with DOMA, a 1996 law that bars federal recognition of same-sex marriage.
At issue is a key provision, known as “Section 3,” that denies federal benefits to gay couples who are legally married. Under Section 3, gay couples cannot receive Social Security benefits, spousal exemption from estate tax, or the ability to file joint tax returns, among other rights awarded to married couples, even in states that legally recognize same-sex marriage.
Two federal appeals courts have struck down Section 3 of DOMA, ruling that it violates equal protection under the Constitution. The lower courts’ rulings put additional pressure on the Supreme Court to weigh in.
Currently, a majority of the court is thought to be in favor of gay rights. But a decision to strike down Section 3 may also appeal to the more conservative justices, who are in favor of expanding states’ rights (including defining marriage) and limiting federal law.
The most important justice to watch will be Justice Anthony Kennedy, the swing vote, who is usually mindful of federalism issues and sides with states’ rights.
“This is the kind of case that would appeal to Justice Kennedy for the court’s first intervention on same-sex marriage,” predicted Douglas NeJaime, an associate professor of law at Loyola Law School in Los Angeles, speaking about DOMA cases and the Supreme Court's likelihood to hear them.
Four votes are needed for the court to accept a case, and a decision is expected to be announced on Monday.