Activists demonstrate outside the Supreme Court as justices deliberate… (Chip Somodevilla, Getty…)
WASHINGTON — The Supreme Court justices are not exactly facing the "fiscal cliff," but they will be under more pressure this week to decide which gay marriage cases they will rule on this term.
They discussed the pending appeals at their private conference on Friday, but announced no decisions. The justices will try again at their weekly conference this Friday, the last such meeting before the long holiday recess.
It is not uncommon for the justices to discuss an appeal for two or more weeks before voting to grant it. The gay marriage question is complicated because there are 10 pending appeals, including a defense of California's Proposition 8, which bans same-sex marriage.
Eight of the appeals ask the court to rule on the constitutionality of the Defense of Marriage Act, which bars federal benefits to legally married gay couples. Judges in New England, New York and California have declared this provision unconstitutional because it denies gays and lesbians equal protection of the laws.
The Supreme Court has a duty to rule when a major federal law has been struck down in one part of the nation. But it is not clear which case the court should decide.
The first ruling on the issue arose when Nancy Gill, a postal worker from Massachusetts, sued because she could not include her female spouse on her healthcare plan. She won, but Justice Elena Kagan may be forced to sit out that case because she worked on it as solicitor general, potentially setting up a 4-4 tie.
In October, Solicitor Gen. Donald Verrilli Jr. advised the court that the New York case of Edith Windsor "now provides the most appropriate vehicle" for deciding the constitutional question. It was filed after Kagan had stepped aside from the Justice Department.
Windsor and her partner, Thea Spyer, lived together for more than 40 years and married in Canada in 2007. When Spyer died in 2009, she left her estate to Windsor, but the Internal Revenue Service assessed Windsor $363,000 in estate taxes, saying she did not qualify as a "surviving spouse."
But because Windsor and Spyer were married in Canada, they may not serve as the proper stand-ins for the other plaintiffs who were legally married in one of the states.
Massachusetts has raised a third complication. State Atty. Gen. Martha Coakley filed a separate appeal and urged the court to decide the issue on states' rights grounds. Since marriage has always been a matter of state law, she argued, the Defense of Marriage Act violates the 10th Amendment, which protects the powers of the states.
If the court sees a problem with the Gill or Windsor cases, it could opt to decide similar cases involving federal benefits brought by same-sex couples from Connecticut, New Hampshire, Vermont and California.
Once the justices decide which of the Defense of Marriage Act cases to hear, they must decide whether to go further and rule on California's Proposition 8 and the potentially broader issue of the right to marry for gay couples. If the court votes to hear the case, the justices will decide by next summer on whether the state's ban on gay marriage violates the Constitution's guarantee of equal protection of the laws.
If the court turns down the appeal, it will clear the way for gay marriages to resume in California, but without setting a national precedent.
In addition, Arizona has asked the court to revive a state measure that denies benefits to the domestic partners of state employees — a case known as Brewer vs. Diaz.
The court's recent practice has been to announce on Friday afternoon which cases have been granted a review, and to announce on Monday the appeals that were turned down.