At its most basic, the issue the justices must determine is how equal protection is to be enforced in cases involving sexual orientation and marriage.
They have agreed to answer that question in the context of California’s Prop. 8 ban on same-sex marriage and the continued enforcement of DOMA, which bars gay and lesbian married couples from receiving the same federal benefits as heterosexual married couples.
The cases, Hollingsworth v. Perry (12-144) and US v. Windsor (12-307), likely will be set for oral argument in March or April, with decisions announced by late June.
It is not clear how the high court will resolve these disputes. Justice Anthony Kennedy authored the high court’s two most recent gay rights decisions – Romer v. Evans in 1996, and Lawrence v. Texas in 2003.
Both decisions significantly expanded gay rights, but there is no indication yet where Justice Kennedy, a potential decisive swing vote, may come down in the same-sex marriage cases.
Specifically, the court must decide what level of judicial scrutiny to apply to the challenged measures.
Will a majority of justices decide that gay and lesbian couples are entitled to a higher protected status as members of a distinct and powerless group long subjected to discrimination?
Or will the court conclude that same-sex couples are entitled to no special protection when challenging measures that seek to uphold a definition of marriage that has prevailed – largely unchallenged – for much of civilized history.
In addition, the court must decide whether the government has a justifiable reason to treat male-female married couples differently than married couples of the same sex.