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DOMA trials: updates from the First and Ninth Circuits

DOMA trials Gill/Massachusetts Golinski

By Jacob Combs

A sincere thank you to Kathleen for bringing news of all of these developments to us via Quick Hits.

Yesterday, the Justice Department filed two briefs with the Ninth Circuit regarding the appeal of Golinski v. OPM.  In its first filing, the government petitioned the Ninth Circuit for an “initial hearing en banc,” and requested that the en banc petition as well as the overall appeal be expedited.  As you may remember from the Prop 8 trial, an appeal in the Ninth Circuit goes first to a 3-judge panel, and can then proceed to a larger 11-judge en banc panel.  In its filing, the Justice Department called DOMA “a constitutional question of exceptional importance and urgency,” and specifically cited the need for a determination on whether classifications based on sexual orientation should be examined under heightened scrutiny or rational basis scrutiny.

I wrote recently about how the district court’s decision in Golinski v. OPM, looking specifically at the significance of Judge Jeffrey White’s determination to strike down DOMA on heightened scrutiny grounds.  The Ninth Circuit’s 1990 decision in a case called High Tech Gays ruled that gays and lesbians were not a suspect class (and therefore not deserving of heightened scrutiny).  As Judge White noted in his ruling, however, High Tech Gays was based on the Supreme Court’s decision in Bowers v. Hardwick, which was specifically overturned by the 2003 ruling in Lawrence v. Texas.  High Tech Gays, then, is based on outdated law, and Judge White noted that the Ninth Circuit can and should make a new determintion on the scrunity question.  In its brief, the government argues that a Ninth Circuit panel would have to determine whether High Tech Gays still binds panels in the appellate court, while an en banc court could look at the question of heightened scrutiny anew.

The Justice Department’s position is a big deal, because it recognizes just how important the scrutiny issue is to the determination of DOMA’s constitutionality, and essentially argues for skipping the panel step and going straight to the en banc review that would almost certainly be required for such an important precedential consideration.  In addition, the government also filed a separate motion to consolidate and expedite both BLAG and the Justice Department’s appeals, writing that “ongoing litigation creates uncertainty for Ms. Golinski and countless others who are harmed by DOMA, given its extraordinary scope.”

Also yesterday, the First Circuit announced the names of the three judges who will make up the appeals panel for in the companion cases of Gill v. OPM and Massachusetts v. HHS.  The three judges are Chief Judge Sandra L. Lynch, Judge Juan R. Torruella and Judge Michael Boudin, who are Clinton, Reagan and George H.W. Bush appointees, respectively, and the most senior active justices in the First Circuit.  In terms of pertinent decisions in the judges’ past, Judge Boudin last year upheld the right of transgender prisoners to receive hormone therapy.  P8TT will continue to look into the judges’ background for any information as to how they might rule in the Massachusetts cases.  The First Circuit will hear arguments in the two DOMA cases in Boston on April 4 beginning at 10 a.m.  BLAG and the Justice Department will each receive 20 minutes to speak, while attorneys for Gill and Massachusetts will each receive 10.

One interesting aspect of the First Circuit hearings is the attorneys who will be making the government’s arguments on both sides.  In some ways, the face-off will be a meeting of the greats: Paul Clement, a former U.S. Solicitor General who left his previous law firm after it withdrew from defending DOMA, will be representing BLAG in Boston, while the Justice Department will be represented by Stuart Delery, Acting Assistant Attorney General for the Civil Decision.  Delery was recently assigned to the case to replace another government attorney, and his appointment is significant because he is both a high-ranking member of the Justice Department and because he is openly gay.

With these developments in the First and Ninth Circuits, we have a lot to look forward to as DOMA continues to be examined and, hopefully, struck down by more appellate courts on its way to its eventual consideration by the U.S. Supreme Court.


  • 1. Fan  |  March 27, 2012 at 8:41 am

    good news!

  • 2. jpmassar  |  March 27, 2012 at 8:53 am

    DOMA is no longer the law of the land:

  • 3. Sagesse  |  March 27, 2012 at 9:15 am


  • 4. Steve  |  March 27, 2012 at 9:17 am

    It's embarrassing how slow this is moving. Yet an Obamacare case has made its way to the Supremes in only two years. WTF?!

  • 5. Bob  |  March 27, 2012 at 9:45 am

    That seems like big news. Look forward to seeing more of this.

  • 6. MJFargo  |  March 27, 2012 at 9:54 am

    This may be the most encouraging news I've heard, although I'm not sure conservative members of the bench are too thrilled, But all this stuff languishing at the appellate level needs addressing. And heightened scrutiny! Big news!

  • 7. Str8Grandmother  |  March 27, 2012 at 9:58 am

    We waited a whole darned YEAR on the issue of standing on Prop 8, the California Supreme Court did not do anything to hurry this up. I wish to hell we had that year back, this with elections and North Carolina coming up for a vote in about a month. Just think where we might be if the California Supreme Court had moved their butts on this. We wasted a whole year on Standing.

  • 8. Str8Grandmother  |  March 27, 2012 at 10:01 am

    Really nice article Jacob, good work {{{hugs}}}

  • 9. Ann_S  |  March 27, 2012 at 10:37 am

    Thank you, Kathleen and Jacob. Fascinating stuff. There is also an article in this morning's SF Chronicle:

  • 10. erasure25  |  March 27, 2012 at 10:39 am

    That Delery is gay is of no importance whatsoever. Just as Walker was presumed impartial and able to do his job also means Delery can do his job.

  • 11. MJFargo  |  March 27, 2012 at 10:57 am

    I'm not entirely sure the fault is solely there's. I'm still miffed the 9th didn't man-up and make their own determination on standing. I'm not sure SCOTUS is going to be very impressed with what the California Supreme Court said about the matter.

  • 12. Ann_S  |  March 27, 2012 at 11:03 am

    I don't think it will matter much what the SCOTUS thinks about what the California Supreme Court said about standing, because the CA Supreme Ct only addressed California law, and they are the last word on California law (absent a conflict with the US Constitution).

  • 13. 415kathleenk  |  March 27, 2012 at 11:39 am

    GReat news. I'm watching these cases with just as much anticipation as I watch the Prop 8 case.
    Thanks to Jacob and Kathleen for the reporting and analysis.

  • 14. Sammy  |  March 27, 2012 at 1:00 pm

    but this case is based on federal law in the federal courts and the SCOTUS has said the standard applied in Arizona (same as California state law) does not apply to federal courts, so they may very well end prop 8 on standing yet…

  • 15. Kathleen  |  March 27, 2012 at 3:26 pm

    Great article, Jacob. Thanks!

  • 16. shadow_slayer15  |  March 27, 2012 at 5:33 pm

    I'm voting no on the NC law.

  • 17. Tyler  |  March 27, 2012 at 8:51 pm

    I blame the plaintiffs for failing to sue someone who would appeal. Seems like they expected Schwarzenegger to do it but were probably blindsided.

  • 18. Bill S.  |  March 28, 2012 at 5:00 am

    I was very disappointed when the motion for an initial hearing en banc failed by just one vote in the 1st Circuit Court of Appeals for Nancy Gill's case. Hopefully this one will be different, especially since they have a case (High Tech Gays) that specifically needs to be addressed.

  • 19. Leo  |  March 28, 2012 at 7:49 am

    FWIW, Judge Torruella is the only one of the three who dissented from the denial of initial hearing en banc. Judges Lynch and Boudin both signed on to the denial.

  • 20. Str8Grandmother  |  March 31, 2012 at 5:08 pm

    I can't help but think of that phrase, Justice Delayed is Justice Denied.

  • 21. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 4:03 pm

    […] Group (BLAG) took up the defense in its stead.  Briefings were submitted in the fall.  As it did recently in another DOMA case in the Ninth Circuit, the Department of Justice (along with the plaintiffs) […]

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