Hey, about five minutes after I posted my Supreme Court preview, the Court announced that they are going to take up two of the cases I highlighted concerning same-sex marriage. One involves the constitutionality of the federal Defense of Marriage Act (DOMA) and the other concerns the Ninth Circuit's decision to strike down Prop 8.

It's important to note first that both cases are narrow. The DOMA case asks whether it's constitutional for the federal government to deny federal benefits to same-sex couples who have legally married in any of the nine states that allow gay marriage (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, and the District of Columbia).  Most likely, the key vote in this case will be Justice Kennedy, who wrote the majority opinion nine years ago striking down Texas's anti-sodomy law.

The constitutional hook that the Ninth Circuit relied upon—that Prop 8 "treats different classes of people differently"—is precisely the reasoning the Supreme Court will have to affirm or reverse.The Prop 8 case is dicey. The Ninth Circuit's opinion, authored by its liberal lion, Judge Stephen Reinhardt, was written to be California-specific (in an effort to avoid Supreme Court review).  In particular, Judge Reinhardt's reasoning was closely tied to the fact that the California Supreme Court had ruled that same-sex couples could get married, only to have that right taken away from them with Prop 8. Reinhard reasoned that you can't give a right and then take it away without some "legitimate reason" for doing so.  In short, Reinhardt said that it was arbitrary to pass a state law that takes away rights that had previously been granted by the state's courts. 

But the constitutional hook that the Ninth Circuit relied upon -- that Prop 8 "treats different classes of people differently,"  and that the law "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" -- is precisely the reasoning the Supreme Court will have to affirm or reverse.  And, once again, it looks like it'll be up to Justice Kennedy.
 
It's tough to make predictions with hot-button cases like these, but here's my take: the States' rights argument here cuts against DOMA, but also against Reinhardt's Prop 8 decision. I can see Justice Kennedy concluding that States get to decide how to define marriage, and that DOMA cannot withhold benefits from those couples who legally marry in States like Washington. But, under the same reasoning, he could reverse Reinhardt and uphold Prop 8 because it represents a particular State's decision (in that case, California voters' decision to pass the law).
 
The case will likely be argued in March, and decided in late June. Sure makes for an anxious Spring.