New York Estate Planning & Elder Law Blog
The uncertainty about whether or not the United States Supreme Court will intervene and decide the constitutionality of the Defense of Marriage Act or determine whether the Equal Protection Clause of the U.S. Constitution requires marriage equality will soon be over. That is because, as discussed in a recent, helpful ABA article on the subject, the members of the Court are set to meet next week, November 20th, to determine what cases (if any) they will hear on the subject.
This November 20th meeting will be a private conference. That means that it will occur behind closed doors, and the public will not be appraised of the discussions. In general, it takes 4 members (out of 9 total) for the Court to agree to hear a case. Maneuvering around these sorts of issues is very delicate, and filled with legal strategy. That is because the high court only considers the exact facts and arguments presented before it when hearing a case. But there are several cases that might be considered on any given topic, and so advocates on all sides of an issue, including this one, often jockey to have their preferred case used as the one the Court hears to decide the legal matter.
Observers note that the most likely case to be heard on DOMA is Windsor v. United States. This is the high-profile case involving a plaintiff from New York who was forced to pay several hundreds thousands of dollars in estate taxes that she otherwise would not have paid because the federal government, pursuant to the “Defense of Marriage” Act, did not recognize her marriage to another woman. Earlier the 2nd Circuit Court of Appeals struck down the part of the law that prevents federal benefits from going to married same-sex couples in states that permit such unions.
Another case on the same subject that the Court might hear–and preferred by supporters of DOMA–is Gill v. Office of Personnel Management. The 1st Circuit Court of Appeals also threw out some parts of the law in that case. However, if that case makes it to the Court, then Justice Elena Kagan may have to recuse herself. That is because Justice Elena Kagan was the solictor general for the Obama Administration when this case was heard, and she actually argued for the constitutionality of the law at that time, as her position required. The Obama administration has since refused to defend the law and have explained their belief that it is unconstitutional.
In any event, most believe that the Court will cetainly agree to hear at least one of these cases challenging DOMA. However, there is far more uncertainty regarding whether the Court will hear the so-called “Prop 8” case. That matter argues that state bans on gay marriage violate the U.S. Constitution. Unlike the DOMA cases, if the Prop 8 case affects the law in states that currently ban gay marriage.
See Our Related Blog Posts:
Keeping an Eye on Upcoming Supreme Court Cases