The American Constitution Society believes that the Supreme Court may decide to hear the Windsor case over all the others.
Notably, Windsor is now looking, to many, like the leading candidate among cert-worthy marriage cases and, for marriage equality advocates, a particularly promising one for at least three reasons. In addition to its facts, Windsor also adds a new dimension to the DOMA jurisprudential landscape. Among the ten federal court rulings to invalidate DOMA thus far, Windsor is the first where a circuit court applied heightened scrutiny to the statute’s sexual orientation-based classification. In the 2-1 ruling, Chief Judge Dennis Jacobs followed the high court’s traditional analysis, asking whether gay people have suffered a history of discrimination; whether sexual orientation is a distinguishing characteristic; whether sexual orientation relates to an individual’s ability to contribute to society, and whether gay people are relatively politically powerless. All of these inquiries, he found, warrant intermediate scrutiny for classifications that, like DOMA’s, distinguish between gay and non-gay people.