July 24, 2012
By Scottie Thomaston
Thanks to Kathleen for these filings
Golinski v. Office of Personnel Management is awaiting both an appeal to the Ninth Circuit Court of Appeals (with oral arguments scheduled for September 10) and a decision by the Supreme Court on whether to accept the Justice Department’s petition for certiorari in the case – with that decision expected either right after their September 24 conference or the following week. The district court struck down Section 3 of DOMA and applied a heightened form of judicial scrutiny along the way; it was the first federal court to apply that standard of review.
The Justice Department petitioned the Supreme Court to review the case before judgment – or even oral argument and briefing – at the Ninth Circuit. Now the plaintiff has filed a brief in response to the petition. In the brief, Golinski agrees that the Supreme Court should take the case. The brief says that this case “does not present any legal issue that might impede this Court from determining whether Section 3 of DOMA is unconstitutional” because the only issue before the Court is the constitutionality of Section 3 of DOMA.
The brief says that since the district court considered the scrutiny issue after a trial and determined that heightened scrutiny applies, it presents an appropriate vehicle to decide that question. They write:
The district court carefully considered expert testimony and precedent establishing the long history of invidious discrimination against lesbians and gay men, the lack of relevance of a person’s sexual orientation to the ability to contribute to society, and—although of less weight in determining the applicable level of scrutiny—the ways in which sexual orientation is a core, defining, and immutable trait, as well as the political vulnerability of the lesbian and gay minority in our country. The district court’s factual findings, framing of the analysis, and thorough consideration of this initial question make this a particularly appropriate case in which to consider the constitutionality of Section 3 of DOMA.
So the DOJ and now Golinski herself has asked the Supreme Court to review her case.