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Archives – July, 2012

DOMA: Ninth Circuit oral argument in Golinski v. OPM canceled pending Supreme Court action

By Scottie Thomaston

Oral argument in the Ninth Circuit challenge to Section 3 of the Defense of Marriage Act was scheduled for September 10. The Justice Department petitioned the Supreme Court for certiorari, to review the case, and the Court won’t decide whether to take the case until September 24 or later. Now the Ninth Circuit has canceled oral argument in the case pending the Supreme Court conference and subsequent decision to hear the case or not.

The filing says:

The oral argument scheduled for September 10, 2012, is VACATED. The Court directs that this case be held in abeyance pending resolution of the petition for a writ of certiorari before judgment pending before the United States Supreme Court in Office of Personnel Management, et al., v. Golinski, No. 12-16 and, if certiorari is granted in this case, pending determination of the case on the merits.

Here’s the document via Kathleen:12-15409 #140

28 Comments July 27, 2012

Immigration Equality’s DOMA suit Blesch v. Holder put on hold

By Scottie Thomaston

Blesch v. Holder is a lawsuit challenging Section 3 of the Defense of Marriage Act as it applies to immigration. It was filed by Immigration Equality. Via Kathleen in Quick Hits, Chief Judge Carol Bagley Amon, Chief Judge of the Eastern District of New York has put the case on hold for now.

The Blesch case is being heard within the Second Circuit’s jurisdiction, where Windsor v. USA is currently on appeal (along with its petition for certiorari to the Supreme Court) so the Chief Judge issued a stay of Blesch until Windsor is resolved at the Second Circuit. The Windsor case will continue along its normal path – the Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans filed its notice of appeal to the Second Circuit on June 8 – until the Supreme Court conference to decide whether or not to review Windsor. That will be on September 24 or the following week.

The note on the docket says:

Minute Entry for proceedings held before Chief Judge Carol Bagley Amon: Status Conference held on 7/25/2012. Counsel for parties present. Status conference held by telephone before Chief Judge Amon on 7/25/12. The case is stayed pending the Second Circuit’s resolution of Windsor v. United States, No. 12 CV 2335 (2d Cir) (Court Reporter Charisse Kitt.) (Fernandez, Erica) (Entered: 07/26/2012)

4 Comments July 27, 2012

Final ballot language released for Maine marriage equality referendum

By Jacob Combs

Yesterday, the AP reported that Charlie Summers, Maine’s Secretary of State, had released the final ballot wording for the referendum that will ask Mainers whether or not to bring marriage equality back to their state.  The final wording is short and to the point: “Do you want to allow the State of Maine to issue marriage licenses to same-sex couples?”

Summers, a Republican who opposes marriage equality, had originally proposed a different ballot question which read, “Do you want to allow same-sex couples to marry?”  Equal marriage advocates in the state had opposed that wording, saying that it was misleading and withheld vital information from Maine voters since it did not represent the part of the law that protected religious institutions who are opposed to marriage equality.  A 30-day comment period was held during which the public could respond to the proposed language.

Advocates on both side of the issue said they were pleased with Summers’s final wording.  Supporters of equal marriage rights said the final wording makes it clear that the law concerns only civil marriage and has no effect on religious institutions’ decisions to recognize marriages between gay and lesbian couples.  Protect Marriage Maine also said that it considered the language a good middle ground, although the group’s chairman, Rev. Bob Emrich, said he wished it had included language asking voters whether they wanted to “redefine” marriage.

Moving ahead, marriage equality supporters in the state will bear some of the burden of explaining the laws religious protections, since they will not be explicit in the wording.  Nonetheless, it’s a good sign that this ballot language doesn’t include any mention of “redefining” marriage, or of limiting marriage to “one man and one woman.”  On both those fronts, the Maine language is simple, balanced and easy to understand.

3 Comments July 27, 2012

Equality news round-up: Some DOMA updates, and more

By Scottie Thomaston

– Sally Ride’s sister spoke to The Advocate about DOMA.

– NYC is joining Edith Windsor’s petition to ask the Supreme Court to review DOMA.

– In Bloomberg, an op ed writer says anti-gay marriage people will be embarrassed in 20 years.

– The Washington Blade has a Q&A with a top researcher trying to fight HIV/AIDS.

5 Comments July 26, 2012

Preliminary hearing held in Hawaii marriage equality case

By Jacob Combs

The AP reports that at an initial hearing Tuesday in the Hawaii marriage equality case Jackson v. Abercrombie, lawyers for Gov. Neil Abercrombie argued that he should remain in the case as a defendant even though he agrees with the plaintiffs that the state’s ban on marriage equality is unconstitutional.  District Court Judge Alan Kay also heard arguments on the merits of the case, who argue that Hawaii’s civil unions keep the state’s gay and lesbian couples from equal protection under the laws.

Hawaii Family Forum, a Christian group that Judge Kay allowed to intervene in the lawsuit as defendants after Abercrombie declined to defend the law, argued in court that the governor should not be a party to the suit because he is not the governmental officer who oversees the issuance of marriage licenses.  Abercrombie’s position of simultaneously supporting the lawsuit while opposing the law puts him in a similar position to the federal government in the various DOMA cases being litigated across the country.

Kay told the participants in Tuesday’s hearing that he is leaning towards allowing Abercrombie to remain in the case as a party, although he made no official ruling on the matter.  He also issued no ruling on the two sides requests for a conclusion to the case without further oral argument since the material facts of the case are not disputed by the two sides.

At the hearing, Clyde Wadsworth, an attorney for Equality Hawaii and Hawaii LGBT, both of which filed friend of the court briefs in the case, noted the Hawaii case’s similarity to the Prop 8 trial in Calfornia.  The Jackson case also resembles another case in Nevada, Sevcik v. Sandoval, which is challenging that state’s domestic partnership laws under the U.S. Constitution.

21 Comments July 26, 2012

State of Massachusetts petitions the Supreme Court to review Section 3 of DOMA

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

19 Comments July 25, 2012

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