Edie Windsor, left, the plaintiff in one of the DOMA cases. Right Ted Olsen and David Boies, the attorneys behind the Prop. 8 case.
Supreme Court to Hear Prop 8, DOMA Cases

By Julie Bolcer

Originally published on Advocate.com December 07 2012 3:26 PM ET

The moment activists have long awaited arrived today as the Supreme Court announced it will hear a range of cases on same-sex marriage.

The Supreme Court indicated that it will hear the challenge to the California marriage ban, called Proposition 8, and another by an elderly lesbian widow, Edith Windsor, against the Defense of Marriage Act.

The high court shared its plan in orders released Friday afternoon, SCOTUSblog reports. The Prop. 8 case challenges the California ballot initiative that overturned marriage equality in 2008, while the DOMA challenge concerns Windsor, an 83-year-old from New York who was forced to pay more than $360,000 in estate taxes because the federal government did not recognize her marriage to her late spouse, Thea Spyer.

(RELATED: The Story of When Edie Met Thea)

The Second Circuit Court of Appeals decided for Windsor in October, but she had already made an appeal to the Supreme Court asking for urgency while citing her advanced age and declining health.

“When Thea and I met nearly 50 years ago, we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay married couples should be treated equally, and not like second-class citizens,” said Windsor in a statement released by the American Civil Liberties Union, which is representing her. “While Thea is no longer alive, I know how proud she would have been to see this day. The truth is, I never expected any less from my country.”

(RELATED PROFILE: The Fight of Edith Windsor's Life)

The Supreme Court is expected to hear oral arguments in March and issue a decision by the end of its term in June 2013.

Word of the orders follows weeks of anticipation and two private conferences by the nine justices. The court had been asked to hear 11 petitions related to marriage equality, including cases about Proposition 8, same-sex domestic partnerships in Arizona, the Nevada constitutional ban, and eight challenges to DOMA. The cases challenge the constitutioality of section 3 of the 1996 law, which prohibits the federal government from recognizing same-sex marriages. 

But these weeks of waiting to hear how the court would proceed follows a much longer wait for the activists who dreamed of taking these questions before the Supreme Court, which if it decides in their favor has the potential to take marriage equality nationwide or to specifically tailor its ruling to a more specific set of circumstances.

The decision to grant review of the Prop. 8 case means that same-sex couples in California will continue to wait to be able to marry for now. Had the court denied the petition, couples would have been able to start marrying again right away.

David Boies, who is arguing the case with attorney Ted Olson, acknowledged the court’s decision to take the case created some “mixed feelings.”

“On the one hand, we all want our clients and the citizens of California to have marriage equality immediately,” he said during a conference call with reporters Friday. “On the other hand, this is an ideal case for the Supreme Court to decide this critical civil rights issue.”

Depending on how the court approaches the question, its decision could apply to only California, or it could have more sweeping implications in terms of a “fundamental right to marry in every state,” according to Boies. He said that even a more limited ruling would still set a “very persuasive precedent” for other jurisdictions.

Despite the high stakes, the legal team and the Prop. 8 plaintiffs expressed no apprehension. Kris Perry, a plaintiff with her partner Sandy Stier, welcomed the prospect of the court’s ruling on their case.

“As much as Sandy and I want to be married, we wanted to be plaintiffs in this case because we want everyone in California to be able to get married, and frankly, everyone in the Untied States,” she said. “What we ultimately wanted was the very biggest and broadest and boldest outcome possible.”

Olson, who has argued about 60 cases before the Supreme Court, also expressed confidence of a favorable outcome.

“We argued all along that the court should not take the case because we represent two individuals at the state and appeals level,” he said. “However, we all felt all along that this case was a perfect vehicle to decide the fundamental rights of all Americans with respect to the right to marry, and we could not be more gratified that this is the case the court will have before it with respect to these issues.”

Chad Griffin is now president of the Human Rights Campaign but co-founded American Foundation for Equal Rights, the group that brought the Prop. 8 court challenge.

"The passage of Proposition 8 caused heartbreak for so many Americans," Griffin said in a statement, "but today’s announcement gives hope that we will see a landmark Supreme Court ruling for marriage this term."

HRC also applauded the possibility DOMA could fall.

“I am confident that the Justices will find this law patently unconstitutional and the federal government will get out of the business of picking which marriages it likes and which it doesn’t," said Griffin.