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Supreme Court DOMA and Prop 8: Justices Will Hear Gay Marriage Cases in 2013

On Friday, the Supreme Court announced that it would hear arguments in Windsor v. United States and Hollingsworth v. Perry, paving the way for a decision on the constitutionality of same-sex marriage in 2013. These cases, addressing the Defense of Marriage Act (DOMA) and California’s Prop 8 (respectively) will mark the first time the Justices have addressed the question of same-sex marriage.

The Court’s decision to hear same-sex marriage sets up a potentially watershed decision that is expected to result in a ruling that declares the federal Defense of Marriage Act’s prohibition on same-sex marriage in violation of the equal protection clause of the Constitution. The Prop 8 ruling is likely to mirror the DOMA decision, as any constitutional prohibition on distinguishing between homosexual and straight couples on questions of marriage will be binding on the states as well as the federal government.

The Justices last addressed the legal status of gay and lesbian citizens in 2003 when they ruled 6-3 that a Texas law criminalizing gay sex was an unconstitutional invasion of privacy. Since then, nine states have legalized same-sex marriage, the Obama administration formally repealed Don’t Ask, Don’t Tell, the policy that prevented gays from serving openly in the military, and formally stopped defending against legal challenges to DOMA (the current case is being litigated by the legal arm of the House of Representatives).

Only two of the dissenters in the 2003 case (Scalia and Thomas) remain on the bench and, despite the addition of conservative Justices Alito and Roberts, liberals are expected to carry the controlling majority in deciding any issue of gay rights.

Justice Anthony Kennedy, generally considered to be the swing Justice in most cases, was the author of the majority that struck down the Texas law in 2003 and is expected to join the liberal quarter of Justices Ginsburg, Breyer, Sotomayor, and Kagan to rule in favor of striking down DOMA.

The cases are expected to be scheduled for argument in March of 2013, with decisions due before June. There are still several same-sex marriage cases on the docket whose futures have not been determined so the potential for even more same-sex marriage cases to be argued in 2013 still exists. However, the expectation is that most, if not all, of the remaining cases will just sit on the docket until the decisions in Windsor and Hollingsworth are handed down next spring.

For same-sex marriage proponents and gay rights advocates, today marks the beginning of what may become the watershed case that turns the legal tide in favor of same-sex marriage advocates.

For a more in-depth look at the history of how these cases got to the Supreme Court, read Mark's coverage here.

Follow Mark on Twitter at @markskogan

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