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Supreme Court to Consider Gay-Marriage Cert Petitions Before Thanksgiving

Posted Nov 9, 2012 6:30 AM CDT
By Debra Cassens Weiss

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The U.S. Supreme Court will consider several cert petitions involving gay marriage at a private conference Nov. 20, including a key case in which Justice Elena Kagan could recuse herself.

The justices will consider around 10 petitions, and “it is close to certain that the court will agree to hear at least one case on the subject,” the New York Times reports.

The Obama administration is recommending the court hear Windsor v. United States, SCOTUSblog reports. In that case, the New York City-based 2nd U.S. Circuit Court of Appeals struck down a provision of the Defense of Marriage Act that bars the federal government from giving benefits to married gay couples. The appeals court found an equal protection violation and ruled on behalf of a lesbian seeking an estate tax deduction after the death of her spouse.

House Republicans who are defending DOMA, argue the case presents standing issues because it’s not clear if plaintiff Edith Windsor’s Canadian marriage, performed before New York allowed same-sex marriage, would have been accepted by New York. Their first choice is for the court to review another DOMA decision that has become known as Gill v. Office of Personnel Management.

In Gill, the Boston-based 1st U.S. Circuit Court of Appeals also struck down the DOMA bar on benefits, citing equal protection and federalism grounds. One problem with that case: Kagan may recuse herself because of her work as Solicitor General on the litigation, SCOTUSblog says in a separate article. At the time, the U.S. Justice Department was defending DOMA; it now takes the position that the law is unconstitutional.

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