The Pew Charitable Trusts

What’s next for same-sex marriage? Less than a month removed from a historic Election Day that saw three states legalize the practice, advocates and opponents are looking to the U.S. Supreme Court to find out.

The high court is expected to decide on Friday (November 30) whether to wade into the fray. At a scheduled conference, the nine justices will likely decide which — if any — gay marriage cases to take up in its spring session.

“These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide,” wrote Tom Goldstein, publisher of SCOTUSblog, Friday. “I have never before seen cases that I believed would be discussed two hundred years from now.”

The court has plenty of cases to choose from.

That includes five cases challenging the federal government’s Defense of Marriage Act (DOMA), which defines marriage as only between a man and a woman. The 1996 law denies marriage benefits to any same-sex couple, including those whose marriages are considered legal in some states. 

Several lower courts have struck down the law, saying it discriminates against gay Americans. Some states — including Connecticut, New York and Vermont —have objected, too, arguing the law violates couples’ rights and states’ right to regulated marriage. The law effectively “un-marries” couples whose marriages are recognized in those states, the states say.

In October, a federal appeals court in New York went the farthest in ruling against the law, saying that gay Americans are a “politically powerless minority,” that merits protection. The court granted a level of review called heightened scrutiny, which requires the government to justify treating one group differently from others.

That case centered on Edith Windsor, a lesbian widow whose marriage was recognized in New York. She was made to pay $360,000 in federal taxes to inherit her wife’s estate. Had Windsor been married to a man, she would have inherited the husband’s estate untaxed.

The House Bipartisan Legal Advisory Group has stepped in to defend DOMA after the Obama administration announced it would no longer do so. The group contends the law furthers several government interests, including creating a uniform definition of marriage, limiting financial incentives doled out to couples, preserving a “traditional understanding of marriage” and advancing “responsible childrearing.”

The Supreme Court could also review California’s ban on same-sex marriage. A 2008 state Supreme Court decision granted gay Californians the right to marry, but voters quickly took away that option. That November, they passed Proposition 8, an amendment to the state constitution defining marriage as between a man and woman.

Last February, a federal appeals court in San Francisco ruled the amendment unconstitutional. The ruling was narrow, focusing only on the fact that the measure took away a right the state court had sanctioned.

“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” wrote U.S. Circuit Judge Stephen Reinhardt.

If the Supreme Court takes up the case, it could rule on that narrow issue, or more broadly. If it does not accept the case, the lower court’s ruling would stand, meaning that gay Californians could again marry.

Nine states and the District of Columbia allow gay marriage. That includes this month’s additions of Maine, Maryland and Washington.