This week the Supreme Court heard two historic cases on marriage . Even though I was a lawyer in the litigation and in the courthouse both days , I ca n't predict which way the court will come down . But the outcomes range from nothing at all to fundamentally restructuring the foundational unit of western civilization . Hollingsworth v. Perry is about whether state laws defining marriage as one man and one woman violate the 14th Amendment of the U.S. Constitution . United States v. Windsor asks whether Section 3 of the Defense of Marriage Act , which defines marriage for federal law and programs as between one man and one woman , is unconstitutional . DOMA passed in 1996 with 78 % of the U.S. House and 85 % of the Senate and was signed by President Bill Clinton . The whole nation is focused on the litigation . Ironically , it 's possible that neither case will be decided on the merits . In Hollingsworth , California 's governor and attorney general abdicated their duties by refusing to defend their state constitution . So pursuant to California law , the sponsors of Prop 8 — officially registered with the state — stepped in to defend the law , represented by Charles Cooper at Cooper Kirk and the Alliance Defending Freedom . In Windsor , the defendant was the federal government . But President Barack Obama declared that he believes DOMA is unconstitutional and ordered his Justice Department not to defend it . So per its rules , the U.S. House voted to authorize Paul Clement — probably the greatest Supreme Court lawyer practicing today — to defend DOMA . Article III of the Constitution limits the jurisdiction of the federal courts . One requirement is that there must be adversity between the parties . Since the defendants in both cases refused to defend their own laws , the court will consider whether the Constitution allows these third-party legal teams to become a proper party to the lawsuits . There 's a second issue in Windsor . Edith Windsor entered into a gay marriage in Canada in 2007 and lived in New York . When her partner died in 2009 , Windsor sued to contest the federal estate tax she paid , claiming a spousal exemption . But New York did not create gay marriage until 2011 , so Windsor was not harmed by DOMA not allowing the federal government to recognize her marriage , since if the IRS used state definitions Windsor would still be regarded an a single woman . Thus it 's possible she lacks standing to sue over the issue . It also raises the issue of whether courts must recognize polygamous marriages , which are legal in dozens of nations worldwide . The swing vote regarding the Article III issues in both cases is probably Chief Justice John Roberts . He openly expressed skepticism in Hollingsworth and led the Court in an hour-long debate in Windsor solely focused on whether the court has jurisdiction . Assuming the court does decide the merits , the implications are historic . Windsor would alter America 's system of federalism . Only the states determine who can get married . But the federal government is free to decide whom to confer federal benefits on — largely economic entitlements and federal issues such as immigration . Federalism is a two-way street . But if DOMA Section 3 is invalidated , the states will be able to dictate whom the recipients of federal benefits are . If Windsor is historic , Hollingsworth is earth-shattering . If the Supreme Court declares a constitutional right to marriage other than one-man , one-woman , then all traditional marriage laws in all 50 states will be invalid , and there will be a serious debate ( already in a lower federal court ) of whether polygamists also have a constitutional right to national recognition . On the merits , the court seems unlikely to declare an unwritten constitutional right to gay marriage , though arguments did not go as well for DOMA . Justice Anthony Kennedy is likely the swing vote in both . As Justice Samuel Alito said this week , the Internet and cell phones have been around on this planet longer than gay marriage . It is an energetic debate in all 50 states , and this summer we will learn whether the Supreme Court will shut down this debate by making it a constitutional issue on which the American people are not allowed to vote .
Ken Klukowski : Cases heard by Supreme Court could result in momentous change . He says there are questions of whether cases could be tossed because of special circumstances . If court issues sweeping ruling , it could deprive voters of chance to weigh in . Klukowski : Gay marriage is such a new phenomenon that court should n't freeze the debate .