Plaintiffs in Gill v. Office of Personnel Management, challenging Section 3 of DOMA, ask Supreme Court to review the case
August 2, 2012
By Scottie Thomaston
Gay and Lesbian Advocates and Defenders (GLAD) who is representing the plaintiffs in Gill v. Office of Personnel Management challenging Section 3 of the Defense of Marriage Act has filed a brief in response to the petitions for certiorari to the Supreme Court filed by the Bipartisan Legal Advisory Group (BLAG), who is defending the law on behalf of House Republicans, and by the Justice Department, who is fighting DOMA in court. Their brief asks the Supreme Court to hear their challenge.
Since BLAG and the Justice Department have both asked the Court to take up the challenge, the filing of this brief with the Court means all three parties now support Supreme Court review. The brief describes DOMA as “a class-based enactment, […] a federal declaration that the Respondents’ marriages are not “real marriages” and merit no respect under any federal law.”
They argue that there is “no dispute” that the legal issues raised in this case are of national importance, pointing to the fact that BLAG and the Justice Department want Supreme Court review of the case. They write, “The Court should not be swayed by the arguments on the merits that BLAG chose to present in its petition… [A]s multiple courts have recently recognized, there are compelling arguments that Congress violated the equal protection guarantee when it decided for the first time to deny all recognition to a single class of state-sanctioned marriages.”
In its opinion striking down Section 3 of DOMA, the First Circuit used the more lenient rational basis test to analyze the constitutionality of the law. In doing so, they considered cases like Romer v. Evans and Dept of Agriculture v. Moreno in which the Supreme Court struck down laws using rational basis review while paying attention specifically to the fact that the laws were based on “animus” against a specific group (gays and lesbians in Romer, hippies in Moreno.) BLAG contended in its petition for certiorari that this approach is “novel” and “unique” among other things. The Gil plaintiffs respond to this point, writing, “While BLAG objects, Moreno, Cleburne, and Romer do in fact illustrate that where unpopular groups or historically disadvantaged minorities are concerned, the Court has, in fact, been careful to scrutinize claims of “fit” between a policy and its stated objectives (Moreno); found alleged legislative interests unconvincing (Cleburne); and not hesitated to find a lack of a relationship between a status based enactment and legitimate interests (Romer). Regardless of its word choice – e.g., “intensified scrutiny,” “greater rigor,” or “closer examination,” DOJ. App. 11a, 13a, 15a – the First Circuit accurately captured the nuances of rational basis review as requiring an examination of whether a law’s justifications are simply pretexts.”
Regarding the level of scrutiny the Supreme Court should apply to laws impacting gays and lesbians, plaintiffs write, “rational basis analysis the First Circuit actually applied to consider and ultimately reject each of the proffered government interests for DOMA further belies BLAG’s assertion that it invented some “new” form of review.” However, although they accept the rational basis review applied by the First Circuit, plaintiffs ask the Court to apply a heightened form of judicial scrutiny. They suggest, “If the Court grants review, it should also consider whether heightened scrutiny applies to laws that discriminate based on sexual orientation” because “this Court’s silence on the standard of review has allowed many lower courts to continue to apply outdated Circuit precedent that sexual orientation discrimination is subject to only rational basis review, thus leaving gay men and lesbians vulnerable to intentional discrimination.” As the Justice Department has already pointed out, gays and lesbians fit the qualifications to receive heightened scrutiny.
The Court will decide whether it will hear Gill v. OPM in early October.