Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, October 20, 2012

Is the Supreme Court More Likely to Take the Windsor Case?

Gay MarriageAs I have previously discussed, a couple of days ago the Second Circuit Court of Appeals ruled that the provision in DOMA that defines marriage as being between a man and a woman violates the equal protection clause of 14th Amendment. I have also discussed that the Supreme Court of the United States will likely take and decide one of the many same-sex marriage cases that exist at the moment. Following the Second Circuit's ruling, some believe that the Court will most likely take the Windsor v. United States case as opposed to the other cases. Although it is certainly not out of the question that the Court might want to consider all of the same-sex marriage cases.

There are several reasons why the Court might be more likely to take the Windsor case. At this moment, there is a split between the circuit courts on a major issue of federal law. In this case, it is the Defense of Marriage Act. As in other cases, some believe that the key to having the Supreme Court affirm the ruling in Windsor will likely come from Justice Anthony Kennedy. In the past, Justice Kennedy has provided the necessary support to case that have held laws that were discriminatory against homosexuals to be unconstitutional. 

See John Schwartz, U.S. Marriage Act Is Unfair to Gays, Court Panel Says, New York Times, Oct. 18, 2012; see also Joe Palazzolo, Second Circuit's DOMA Decision: A Road Map for SCOTUS?, Wall Street Journal, Oct. 21, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing these articles to my attention.


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