Between now and the end of the Supreme Court Term in late June, the Supreme Court will be deciding two cases involving gay marriage.

One case is a challenge to California’s Proposition 8, and raises the question whether the United States Constitution prohibits a state from limiting marriage only to couples of the opposite sex.  The decision might result in a fifty state ban on states prohibiting gay marriage, or an eight state ban for those states (including California) that have granted to gay couples all legal rights of marriage except for the “title,” or a one state ban applying only to California (which had at one time permitted gay marriage and now proposes rescinding that right).  There is also a possibility that the case will not be decided on procedural grounds.

The second case involves the much- publicized claim by a surviving gay spouse that the Defense of Marriage Act (DOMA) is unconstitutional.  This federal statute, signed by President Clinton, as a matter of federal law only recognizes marriage between couples of the opposite sex, even if they live in states that permit same sex marriage.  This affects entitlement of gay couples to approximately eleven hundred federal programs.

The Obama administration is not defending DOMA.  Five members of the House of Representatives have hired a law firm to mount that defense.  This presents a substantial question of standing; could all of Congress, or one House of Congress, or five mere members of one House of Congress, undertake the defense of a federal statute where the government itself, through the attorney general, has declined to defend?

Both cases raise the following issue:  what is the legal standard to be applied to a law that is on its face discriminatory?  How closely do you have to look at the governmental justification for that law?  Cases involving discrimination based upon sexuality generally present the lowest standard; government, to support such a law, must only prove that there is some rational basis for the discrimination.  Tougher standards are imposed on governments where, for example, laws make distinctions based upon race.