The U.S. Supreme Court has decided to hear two cases implicating marriage for same-sex couples. The first, United States v. Windsor, raises the question of whether Section 3 of the federal Defense of Marriage Act (DOMA), which denies federal recognition to same-sex couples' marriages, is unconstitutional. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. That the Court has taken these two cases suggests that it may approach the significant issue raised by the Second Circuit in Windsor -- but avoided by the Ninth Circuit in Perry -- regarding the level of scrutiny to be afforded sexual orientation classifications for equal protection purposes. If sexual orientation classifications merit heightened scrutiny, as the Second Circuit held, all laws that discriminate against lesbians and gay men -- including state marriage prohibitions -- would be suspect. Of course, the combination of Windsor and Perry also suggests that some Justices may believe there is a material distinction between a federal law denying recognition to same-sex couples' valid state-law marriages and a state law preventing same-sex couples from marrying. In other words, the Supreme Court may, on one hand, be poised to issue definitive rulings in favor of sexual orientation equality or, on the other hand, be prepared to split the difference. At the same time, the Supreme Court could simply approach both issues by employing the lowest level of constitutional scrutiny and yet still find both the federal and state laws unconstitutional.
Professor NeJaime recently wrote about the possible Supreme Court review of same-sex marriage laws on Jurist.