July 25, 2012
By Scottie Thomaston
Yesterday, a new brief and a petition for certiorari to the Supreme Court were filed in Massachusetts v. Department of Health and Human Services, a challenge to Section 3 of the Defense of Marriage Act that is consolidated with Gill v. Office of Personnel Management. The Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans has already filed its petition for certiorari in the case. The Justice Department has filed one as well. Massachusetts had raised some separate issues in the courts below and they are asking the Supreme Court to decide those issues as well; the reply brief raises two new questions:
2. Whether Section 3 of DOMA violates the Tenth Amendment.
3. Whether Section 3 of DOMA violates the Spending Clause, U.S. Const. art. I, § 8, cl. 1.
In support of Supreme Court review of DOMA, Massachusetts writes:
The Commonwealth agrees with the court of appeals’ judgment that Section 3 of DOMA is unconstitutional and normally would oppose further review in order to ensure that the judgment takes effect as soon as possible. However, the Commonwealth recognizes that the question is one of national importance and that this Court is likely to review it in the near future, if only to ensure uniformity in the enforcement or non-enforcement of DOMA throughout the country.
Massachusetts’ attorneys think the Court should review this case possibly along with others because it would present the Court with a “full range” of challenges to the law, including the Spending Clause and Tenth Amendment questions along with the equal protection question and an opportunity to define the level of scrutiny required for analyzing laws that classify gays and lesbians. In fact, Massachusetts addresses the importance of the judicial scrutiny issue, writing:
Under this Court’s jurisprudence, a classification is subject to heightened scrutiny if (1) the targeted class has suffered a history of discrimination, and (2) the characteristics that distinguish the group are unrelated to their ability to contribute to society.
In determining the applicability of heightened scrutiny, the Court at times has also considered (3) whether members of the class exhibit immutable distinguishing characteristics, and (4) whether the class is a minority or evidences political powerlessness requiring protection from the majoritarian political process. Murgia, 427 U.S. at 313-314. As the uncontroverted record below demonstrated, gays and lesbians meet each of these requirements.
Review of this question is particularly necessary because the courts of appeals have been reluctant to undertake the multi-factor analysis that Lyng requires. Neither Cook nor most of the other cases cited by BLAG for the proposition that heightened scrutiny should not apply to classifications based on sexual orientation discusses the heightened scrutiny factors in any substantial way.
And they point out that under the First Circuit’s analysis, federalism concerns would all for more rigorous review.
And lastly, the brief suggests that Section 3 of DOMA violates the Spending Clause because the law itself is unrelated to the spending programs. Under their argument, the definition of marriage that Section 3 of DOMA requires would need to be in service of the laws it affects, like Medicaid payments and military burial. In Massachusetts’ view there is no relationship between the definition and the programs whatsoever.
Massachusetts says its lawyers take “no position” on whether the Bipartisan Legal Advisory Group (BLAG) has ‘standing’ to appear in an Article III court and says it has filed its own petition for certiorari:
Out of an abundance of caution, the Commonwealth is also filing a conditional cross-petition for a writ of certiorari raising its Tenth Amendment and Spending Clause arguments, in the event the Court determines that such a cross-petition is required in order for this Court to reach those issues. See Conditional Cross-Petition for a Writ of Certiorari (filed July 20, 2012.)
Their petition squarely addresses the Tenth Amendment and Spending Clause issues. Massachusetts writes:
In addressing the constitutionality of DOMA, this Court should also consider the Commonwealth’s Tenth Amendment and Spending Clause arguments pressed and decided below, which present important questions of federalism that are best addressed in a case where a State appears as a party. As the Commonwealth’s response explains more fully, the Tenth Amendment and Spending Clause provide additional and independent bases for affirming the judgment in the Commonwealth’s favor.
Massachusetts is filing its petition because of the First Circuit’s analysis, which did not expressly rely on the Tenth Amendment and Spending Clause claims, therefore, Massachusetts is concerned the Court might not review those issues without a cross-petition.
While pointing out that it details its arguments more fully in its reply brief, Massachusetts suggests that DOMA is “a sweeping and unprecedented federal incursion into an area that, for centuries, has been a domain of exclusive State regulation” and therefore violates the Tenth Amendment. And because Section 3 bears no relation to the federal programs at issue, it violates the Spending Clause as well.
The Court will decide whether to take this or other DOMA challenges either at its conference on September 24 or in early October.
Thanks to Kathleen for these filings