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Supreme Court Will Hear California Gay Marriage Case

Same-sex marriage proponent Kat McGuckin of Oaklyn, New Jersey, holds a gay marriage pride flag while standing in front of the Supreme Court November 30, 2012 in Washington, DC.
Chip Somodevilla
Same-sex marriage proponent Kat McGuckin of Oaklyn, New Jersey, holds a gay marriage pride flag while standing in front of the Supreme Court November 30, 2012 in Washington, DC.

The U.S. Supreme Court accepted two cases involving same-sex marriage today, one involving federal law and the other involving Proposition 8 in California. A San Diego law professor believes the federal Defense of Marriage Act is most likely to receive the bulk of the justices' scrutiny.

The justices took up the U.S. ban on same-sex marriage because it's a federal law that is applied unevenly across the country, Julie Greenberg, a professor at the Thomas Jefferson School of Law, told City News Service. The justices also agreed to an appeal regarding Proposition 8, the same-sex marriage ban approved by California voters in 2008.

Greenberg said several lower courts around the country have declared the Defense of Marriage Act, also known as DOMA, unconstitutional, so it applies in some jurisdictions and not in others. DOMA defines marriage at a federal level, making it a critical case to decide, she said.


"What was pretty certain was the Supreme Court would take the DOMA case,'' Greenberg said. "It was less certain they would take up Proposition 8.''

According to Greenberg, while the voter-approved ballot measure seems to draw the most ire from same-sex marriage advocates, any Supreme Court ruling on it would probably be narrowly tailored to legal issues. The pros and cons of limiting marriage to one man and one woman might not be addressed, and any decision might only apply to California, she said.

Proposition 8 was found unconstitutional by the 9th Circuit Court of Appeal because government had temporarily extended the right to marry to gays and lesbians and then took it away, Greenberg said.

She said there is a chance the justices could surprise and broaden the impact of its Proposition 8 ruling.

Glenn Smith, a constitutional law professor at California Western, told KPBS he thinks the decision will come down to one or two justices.


"Probably Judge Anthony Kennedy," Smith said. "I have a prediction that ultimately he will decide that same-sex marriage equality is required by the U.S. Constitution. But whether he’s doing that in these decisions, that is sort of hard to say."

Delores Jacobs, CEO of San Diego's LGBT Community Center in Hillcrest, said the decision by the justices to accept the cases was historic.

"This is one of the most significant civil rights cases to reach the high court since Brown v. Board of Education, and provides an opportunity for the Supreme Court justices to affirm the promise of liberty and justice for all, and the Constitutional guarantee of equal protection under the law,'' Jacobs said. "Same-sex couples should no longer be subject to differing treatment under the law depending on what state they live or travel in.''

Jacobs said there is growing support for equal treatment of same-sex couples under the law.

The Proposition 8 case is named "Hollingsworth, Dennis, et al. v. Perry, Kristin, et al.'' Hollingsworth is a former California state senator who represented portions of San Diego County until he was termed-out in 2010 and is a leader in protecting traditional marriage.

Perry, who married her partner in 2004, is a Berkeley resident.