There is A Supreme Court Case Coming That Could Set Back Gay Rights By Years

Business InsiderBy Erin Fuchs | 3/02/2013 - 5:00pm eastern“ 1 hour 19 minutes ago

There's been a recent and dramatic surge of support for gay rights in America.

Voters in three states made history in November by approving same-sex marriage, and some of the country's most powerful Republicans have come out to endorse marriage equality.

Naturally, gays rights activists are optimistic they'll win their fight for marriage equality in the Supreme Court. But the court could set the gay rights movement back years and even make it easier for states to discriminate against gays, various legal experts told Business Insider.

The gay marriage battle has two fronts in the Supreme Court.

In one case, 83-year-old Edith Windsor is fighting to overturn the Clinton-era Defense of Marriage Act, which forbids the federal government from recognizing same-sex marriage. DOMA forced Windsor to pay a lot of taxes on her wife's estate when she died that a heterosexual widow wouldn't have had to pay.

In a second case, an anti-gay marriage coalition is fighting to revive Proposition 8, California's voter-approved gay marriage ban. A federal judge and a federal appeals court struck Prop 8 down as unconstitutional.

The worst-case scenario for gays is obviously that Windsor loses her fight to kill DOMA and the anti-gay marriage group manages to revive Prop 8.

But, depending on how the court words its rulings, the outcome for gays could be particularly bad.

The Congressional group defending DOMA made an argument in its Supreme Court brief that could be damning for gays if a majority of the Supreme Court buys it.

That group, the Republican-dominated Bipartisan Legal Advisory Group, said the government doesn't need to go out of its way to protect gay people because they already have "remarkable political clout."

At issue is a legal doctrine known as "heightened scrutiny," which makes it tougher to keep laws that negatively impact groups that have endured discrimination.

The Supreme Court will also have to decide whether "heightened scrutiny" applies to Proposition 8.

If the Supreme Court rules that Prop 8 or DOMA don't get heightened scrutiny, that rationale would apply to all laws affecting gays, experts said.

"The worst-case scenario would be losing both cases, with the court saying heightened scrutiny doesn't apply" to laws affecting gays, says Paul Smith, who chairs the Supreme Court practice at Jenner & Block.

Without "heightened scrutiny" it could be a lot harder to strike down laws that discriminate against gay people, including laws that forbid same-sex couples from adopting children, UCLA law professor Adam Winkler told BI.

That could set back a movement that's gained a lot of momentum in a very brief period of time.