A mere day after the Supreme Court issued a historic opinion upholding the Affordable Care Act, a congressional group filed a petition for writ of certiorari in a case that is expected to be one of the blockbusters of the next Supreme Court term: same-sex marriage. And like the healthcare case, this one may turn on the limits of Congress's power.

The Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives argues in the cert petition that the 1st Circuit Court of Appeals erred in holding that the Defense of Marriage Act is an unconstitutional intrusion by the federal government on a right -- to define marriage -- that historically belonged to the states. The panel, in a ruling written by Judge Michael Boudin, said that although gays and lesbians who want to get married are not entitled to heightened constitutional scrutiny, DOMA does "require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage."

So how might the high court's discussion of the limits of congressional power in the healthcare case affect the DOMA appeal? On the Case checked in with Paul Smith of Jenner & Block, who argued for the winning side in the landmark gay rights case at the Supreme Court in 2003, Lawrence v. Texas, and was on the (rather large) team of attorneys who won the 1st Circuit DOMA ruling. As an initial matter, Smith pointed out that the issues in the healthcare and DOMA cases are quite different. In his reading, the healthcare opinion doesn't "line up in a helpful or hurtful way" for DOMA opponents.

But he did point to one comment by Chief Justice John Roberts that could boost his side's argument that the federal government should not involve itself in policies that have historically been reserved for the states. "(S)ometimes the most telling indication of a severe constitutional problem ... is the lack of historical precedent for Congress's action," Roberts wrote in his explanation of why the individual mandate in the healthcare law violates the Commerce Clause. "At the very least, we should pause to consider the implications of the government's arguments when confronted with such new conceptions of federal power."

According to Smith, DOMA can also be construed as a "new conception of federal power" because marriage policy is a function of the state, and the federal law steps on states' rights to implement their own marriage-related laws. Because DOMA involves the federal government meddling where it doesn't belong -- in addition, of course, to an individual's constitutional right to equal protection -- the justices may want to give the law a closer look, Smith said.

It's possible, of course, that the court could find that DOMA does violate federalism principles yet refuse to adopt the hybrid equal protection/federalism evaluation the 1st Circuit made. BLAG's cert petition argues that the 1st Circuit overstepped its bounds by "inventing a new form of equal protection review" and that the lower court decision "invalidates an Act of Congress" and conflicts with prior decisions of the Supreme Court. The federalism argument, the petition says, has no place in an equal protection review. "The Constitution's equal protection guarantees exist to constrain government action, not to protect the states," BLAG's lawyers argue.

There seems to be broad agreement that the court will hear the case, which would resolve DOMA challenges in several other circuit and district courts. The justices will consider BLAG's cert petition when they return from their summer break in October.

When it is teed up, we're likely to see a familiar face taking the podium to defend DOMA. Bancroft'sPaul Clement, who argued for the states in the healthcare case, is counsel of record in Congress's appeal. As you may recall, the congressional group took over after the Justice Department's February 2011 announcement that it would stop defending the law. Clement did not return calls requesting comment, nor did the Office of General Counsel of the U.S. House of Representatives.

The case is Bipartisan Legal Advisory Group of the United States House of Representatives v. Gill.

(Reporting by Erin Geiger Smith)

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