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Filed under: Gill/Massachusetts

The Department of Justice presses the Supreme Court to resolve DOMA challenges

By Scottie Thomaston

Last night, the Justice Department filed two petitions for writs of certiorari to the Supreme Court in challenges to Section 3 of the Defense of Marriage Act (DOMA). We covered the news as it broke, and below is analysis of the petitions.

Golinski v. Office of Personnel Management

In the first challenge, Golinski v. Office of Personnel Management, (brought by Lambda Legal) a district court in California struck down Section 3 of the Act as unconstitutional. The Justice Department then asked the Ninth Circuit Court of Appeals to do one of two things: (1) hear the case initially with an en banc panel (eleven Ninth Circuit judges instead of a three-judge panel), or (2) proceed with a three-judge panel but put the case on an expedited schedule so briefing and argument would be completed faster. The appeals court denied initial en banc review, but granted the request for the expedited schedule and set oral argument for the week of September 10. From there, briefs were filed on both sides, with amicus curiae (“friend of the court”) briefs on behalf of the Bipartisan Legal Advisory Group (BLAG), who is defending the law on behalf of House Republicans due by June 11. Amicus briefs on behalf of the plaintiffs (same-sex couples) are due by July 10.

Then, unexpectedly last night, the Justice Department sent a letter to the Ninth Circuit informing them that it was seeking a writ of certiorari to the Supreme Court, bypassing review of the law by the appeals court. Attached to the letter was the petition for certiorari itself. The most significant thing about this move is that while sometimes the Supreme Court is asked to review a case before an appeals court judgment is entered (called “certiorari before judgment” or “cert before judgment”) it is rarely granted, and only in instances where the issue to be resolved in the case is considered highly important. For example, cert before judgment was granted in US v. Nixon, the case involving the papers and tapes of President Richard Nixon. It was granted as well in Ex parte Quirin, a national security case involving military commissions. Certiorari before judgment was granted as late as 2005, in United States v. Booker. It is seen as a highly unusual move, though arguably a federal law that immediately impacts hundreds of thousands of same-sex couples in several different court circuits could potentially qualify as of national importance. As Jon Davidson, Lambda Legal‘s national legal director (and one of the counsel for Golinski tells me, “Federal statutory provisions expressly allow any party to a case pending before a court of appeals to ask the Supreme Court to grant review before oral argument or decision by the intermediate appellate court.”

Another important consideration is that in Golinski, Judge White at the district court held that Section 3 of the Defense of Marriage Act is unconstitutional, but he applied heightened scrutiny to strike down the law. All other district courts (and the appeals court) have held it unconstitutional under a form of rational basis review. Heightened scrutiny refers to how intently a law and its effects are reviewed by judges. Typically, laws have to pass rational basis review, which essentially requires that the law be “rationally related” to a legitimate government interest. Most laws easily survive this deferential form of review, because it is easy to come up with a reason most laws exist, and to tie the law to a legitimate government interest.

But in February, 2011, the Justice Department decided that it would no longer defend Section 3 of DOMA (the only section at issue in any challenge so far) because the Department concluded that laws impacting gays and lesbians should undergo a more heightened form of review like the type of review afforded to laws affecting women or racial minorities. Since gays and lesbians faced historical discrimination and still endure continued discrimination, are not politically powerful in a legal sense, and since being gay and lesbian is innate and does not impact one’s contribution to society, laws classifying gays and lesbians should be viewed as “suspect”, the Justice Department says. This heightened form of review is designed to protect “discrete and insular” minorities from attacks by legislatures.

More below the fold…
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12 Comments July 4, 2012

BREAKING: Justice Department asks Supreme Court to review Ninth and First Circuit DOMA challenges

By Scottie Thomaston

Updates below

The Department of Justice is asking the Supreme Court to hear two challenges to the Defense of Marriage Act, in an unexpected move. The announcement comes in the form of a letter to the Ninth Circuit Court of Appeals as part of the DOMA challenge in that circuit, Golinski v. OPM. The Bipartisan Legal Advisory Group (BLAG), who is representing the Republican-led House in defense of DOMA, had filed for a writ of certiorari to the Supreme Court in a different challenge, Gill v. OPM/Massachusetts v. HHS, this past Friday. The letter notes that the Solicitor General has filed petitions for certiorari in both cases.

The letter, via Kathleen in Quick Hits, is here and it includes the cert petition for Golinski:

12-15409 #77

The Golinski case is scheduled for oral argument at the Ninth Circuit the week of September 10, but the Justice Department is asking to bypass the Ninth Circuit hearing and ruling entirely and head directly to the Supreme Court where they can review issues such as the level of scrutiny and past precedents that may conflict with a ruling striking down DOMA. In the Ninth Circuit, a case called High Tech Gays is settled precedent; it held that gays and lesbians are not a protected class and laws impacting gays and lesbians aren’t entitled to heightened review. This can only be overturned by a Ninth Circuit en banc panel – and the Justice Department originally sought initial en banc review in Golinski but was denied – or by the Supreme Court. So putting the issue squarely before the Justices is a significant step. And in fact, in their certiorari petition, the Justice Department tackles the issue of heightened scrutiny for laws affecting gays and lesbians head on. They write:

The district court concluded that Section 3 cannot survive under heightened scrutiny because the denial of federal benefits to same-sex couples who are legally married under their States’ laws bears no substantial relationship to any important governmental purpose that motivated Section 3’s enactment. App., infra , 36a-44a. Alternatively, the district court concluded that Section 3 would fail even rational basis review because Section 3 is not rationally related to any conceivable legitimate interest of the federal government. Id at 44a-59a. This case squarely raises important questions about the Constitution’s equal protection guarantee as it applies to a federal statute that draws distinctions among persons who are legally married under their States’ laws on the basis of their sexual orientation. For the reasons given in the government’s Massachusetts petition, those questions, and the ultimate question of the constitutionality of Section 3 of DOMA, warrant authoritative resolution by this Court.

They suggest that because the district court ruling addressed the level of scrutiny, it’s time for the Supreme Court to decide that important issue once and for all. The Supreme Court could accept one petition or both in its October conference.

Here is a statement from Lambda Legal staff attorney Tara Borelli:

Press Release from Lambda Legal:
In reaction to the Department of Justice today filing a request that the Supreme Court hear the Golinski v. OPM case challenging the so-called Defense of Marriage Act (DOMA), Lambda Legal issued the following statement from Staff Attorney Tara Borelli:

“This development highlights the desire by all, the government included, to resolve this issue quickly. It is clear to us, to the Solicitor General and to the Department of Justice that DOMA’s days are numbered. The last four courts to consider the question have all found Section 3 of DOMA – which prohibits the federal government from recognizing same-sex couples’ valid marriages– to be unconstitutional . DoJ’s action may speed the day when the Supreme Court reaches the issue. Lambda Legal and Morrison & Foerster stand ready to argue for fair treatment for Karen Golinski and her spouse, Amy Cunninghis, in any court, at any time – and we welcome this opportunity to finally put DOMA out of its, and our, misery.

“There are loving, married same-sex couples, and grieving lesbian and gay widows and widowers around the country who are being hurt by the government’s discriminatory actions – that’s why there are DOMA cases pending in several jurisdictions, brought on behalf of many plaintiffs. Every one of their stories demonstrates that DOMA is an unfair and discriminatory law that violates the Constitution. While it is up to the Supreme Court to decide whether or not to hear Golinski now, we are confident that DOMA will be found unconstitutional – and the sooner, the better.”

The Gill/Massachusetts petition for certiorari by the Justice Department is here: Gill_DOJ Cert Petition

76 Comments July 3, 2012

House Republicans appeal Gill/Massachusetts DOMA case to Supreme Court

By Scottie Thomaston

Earlier this month, the Bipartisan Legal Advisory Group (BLAG) who is defending DOMA in court challenges, noted in a filing that they would be petitioning the Supreme Court for certiorari, or review, by the end of the month. Today BLAG filed its petition. A petition for certiorari is the first attempt to frame the issues the Supreme Court will decide. Petitions have a list of “Questions Presented” that the Supreme Court may or may not decide to hear. (The Supreme Court can also add its own question(s) and possibly ask for briefing on any additional issues.) The questions presented here are:

(1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and

(2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review

The “previously unknown” standard of review the petition cites refers to the First Circuit’s rational basis review that included both a more searching form of review that regarded laws which might be based on animus toward a particular group as suspicious, as well as a stronger focus on DOMA’s impact on federalism.

The petitioners ask the Court to take the case because:

As the First Circuit recognized, this case calls out for this Court’s review. The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the establishedworld of equal protection law that result should have been impossible.

The petition also suggests that the issue of separation of powers should lead the Court to grant cert:

Separation of powers considerations strongly counsel in favor of this Court’s review. The executive branch has not only abdicated its traditional role of defending the constitutionality of duly-enacted statutes, but has simultaneously announced that it will continue to enforce DOMA. App. 127a. As a result, the House has been forced into the position of defending numerous lawsuits challenging DOMA across the Nation. That is a role for which the Justice Department—not the House—is institutionally designed.

Only this Court can settle this matter definitively. Unless and until this Court decides thequestion, the executive branch will continue toattack DOMA in the courts, while continuing to enforce it, thus creating more potential litigation for the House to defend.

The petitioners once again invoke Baker v. Nelson, the 1972 case in which the Supreme Court summarily dismissed “for want of a substantial federal question” a challenge alleging that the Equal Protection Clause requires same-sex marriage. They claim that case conflicts with the First Circuit’s overturning of DOMA.

A response to the petition by the respondents (the plaintiffs at the First Circuit) is due within 30 days.

Thanks to Kathleen for this filing, via Scribd:

[scribd id=98691032 key=key-g3g9wgio76n3gwnynph mode=list]

GLAD (the attorneys for the plaintiffs) has issued a press release:

Congressional Leadership Seeks Supreme Court Review of GLAD’s DOMA Case

Gill Case Could be Decided in 2012-2013 SCOTUS Term

Congressional leadership in the form of the Bipartisan Legal Advisory Group (BLAG) today filed a petition for certiorari in the case Gill v. Office of Personnel Management, a challenge to the federal Defense of Marriage Act (DOMA).

The petition is in response to a unanimous May 31st ruling by the U.S. Court of Appeals for the First Circuit that Section 3 of DOMA is unconstitutional with respect to claims brought by seven married same-sex couples and three widowers from Massachusetts. Gay & Lesbian Advocates & Defenders (GLAD) represents the plaintiffs.

Mary Bonauto, GLAD’s Civil Rights Project Director and lead attorney in the case, said, “We will look closely at the petition and will consider our options. We remain convinced that our clients deserve to be treated equally under the law and have their marriages respected by their government. Two federal courts have agreed with us so far.”

GLAD filed Gill v. Office of Personnel Management on March 3, 2009. Prior to the appellate court decision, U.S. District Court Judge Joseph L. Tauro found DOMA unconstitutional on July 8, 2010.

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.

79 Comments June 29, 2012

First Circuit strikes down DOMA as unconstitutional

By Scottie Thomaston

Updates to follow at bottom, scroll down…

Gill v. OPM was recently heard at the First Circuit Court of Appeals, and today the decision came down that the three-judge panel has struck down the law as unconstitutional.

The unanimous decision striking down DOMA in Gill v. OPM is here. It is the first time DOMA was considered unconstitutional by a circuit court.

The Huffington Post has more:

The law was passed in 1996 at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.

The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The decision will be stayed given the probability that the losing party will ask for a grant of certiorari at the Supreme Court.

From the decision:

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.

It appears that they found they couldn’t apply heightened scrutiny to gays and lesbians, ruling that it wasn’t open to them (Cook v. Gates is binding precedent), and the Supreme Court “conspicuously failed to [apply heightened scrutiny] in Romer–a case that could readily have been disposed by such a demarche.”

Cook v. Gates is a binding First Circuit decision that ultimately decided not to rule that gays and lesbians are a “suspect classification” instead leaving it up to the Supreme Court to decide. The judges said that Cook ties their hands in deciding the issue of heightened scrutiny and whether gays and lesbians are a suspect classification.

The court also held that another case, Baker v. Nelson which summarily dismissed an equal protection claim that gay people have the right to marry under the Constitution applies in this case, but only to the extent that it limits the arguments to ones that don’t “presume a constitutional right to same-sex marriage.”

The court said that the line of cases from Moreno to Romer (holding that animus is not a rational basis for a law) applies to this case:

All three of the cited cases–Moreno, City of Cleburne and Romer–stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571.

Those cases used a stronger form of rational basis to strike down those laws. Lawrence did as well, and it’s cited in the opinion.

And Chris Geidner notes that:

In these cases, the appeal of which were heard together on April 4, the lawyer for Gay & Lesbian Advocates & Defenders, Mary Bonauto, was joined in opposing the law by two government lawyers: Massachusetts Attorney General’s Office Civil Rights section chief Maura Healey and Department of Justice Civil Division Chief Stuart Delery.

Delery is gay and argued successfully against the odious Defense of Marriage Act.

Attorney Adam Bonin, writing at Daily Kos, notes that the judges say that DOMA does have a rational basis, but that under the Romer/Moreno stronger rational basis review, it is unconstitutional.

UPDATE: The panel was comprised of two Republican-appointed judges and one Democrat-appointed judge, and was unanimous, so two more Republican-appointed judges have now joined in opposition to DOMA. The opinion was written by Judge Michael Boudin, a judge appointed by President George H.W. Bush.

UPDATE 2: It’s important to note that ultimately it was the Federal Government’s position that prevailed: the court rejected Massachusetts’ Tenth Amendment claims but still invalidated DOMA.

UPDATE 3: On a press call with GLAD and the Gill plaintiffs, and they note that the First Circuit is a six-member court, and three of the judges just ruled unanimously to overturn DOMA. This would suggest that en banc review is unlikely.

UPDATE 4: GLAD suggests the Supreme Court would likely grant certiorari. Chris Geidner asks them to explain why the Supreme Court should hear the case. Bounato says “same-sex couples are singled out for sweeping disrespect by the federal government.” “We think this is a good case for Supreme Court review… it’s like Romer (v. Evans.)” She says “this law is a real outlier.”

UPDATE 5: Asked about the time frame for possible Supreme Court review, she says, “They have 90 days to file cert petition.” August cert filing, October conference would be likely.

UPDATE 6: The GLAD conference call is over, and they’ve issued a press release:

Today, the U.S. Court of Appeals for the First Circuit ruled unanimously that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional with respect to claims brought by seven married same-sex couples and three widowers from Massachusetts. The ruling has been stayed pending a likely appeal to the U.S. Supreme Court.

“If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test,” the court stated in its opinion.

“This is a strong opinion that affirms that DOMA is an outlier for two reasons. First, because it targets a historically disadvantaged and unpopular group. Second, DOMA intrudes broadly into domestic relations, an area of traditional state regulation,” said Mary Bonauto, GLAD’s Civil Rights Project Director, who argued the case. “Congress does not get to put its ‘thumb on the scales,’ as the court put it, simply because it does not agree with Massachusetts’ decision to allow loving and committed same-sex couples to marry.”

Represented by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs in Gill et al. v. Office of Personnel Management have each been harmed because the federal government, under DOMA, has refused to recognize their marriages for all purposes, including Social Security protections, access to family health insurance policies, and joint income tax filings. On July 8, 2010, U.S. District Court Judge Joseph L. Tauro ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The U.S. Department of Justice appealed the ruling, which resulted in today’s decision.

The next step most likely in the case is for the federal defendants and BLAG to decide whether they will seek review in the Supreme Court. That request should come within the next 90 days.

UPDATE 7: Lambda Legal is up with comments on the decision:

We are thrilled that another court—this time, the Court of Appeals for the First Circuit—has ruled that it is unconstitutional to deny respect to the marriages of lesbian and gay couples.

The so-called Defense of Marriage Act is being challenged in multiple cases, and it won’t be long before that bad law is gone for good.

We congratulate our colleagues at Gay and Lesbian Advocates and Defenders (GLAD) and the State of Massachusetts for achieving this wonderful victory.

UPDATE 8: The Wall Street Journal‘s Law Blog has several excerpts from the opinion, emphasizing the judges’ decision to invalidate DOMA based on precedent related to a stronger rational basis review, instead of the Tenth Amendment federalism claims raised by Massachusetts:

In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded.

It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation–domestic relations and the definition and incidents of lawful marriage–which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture.

UPDATE 9: Washington Blade‘s Chris Johnson says House Speaker John Boehner (tasked with defending DOMA) will have a statement soon on the next steps BLAG will take:

UPDATE 10: Geidner at Metro Weekly notes (in a post linked above) that the White House is weighing in on the decision:

White House press secretary Jay Carney said today of the decision, “There’s no question that this is in concert with the president’s views.” He went on to note that the Department of Justice participated in the oral arguments defending its view that Section 3 is unconstitutional.

UPDATE 11: Pam Spaulding has a post featuring a lot of reactions from Congresspeople, and from LGBT organizations.

UPDATE 12: Alliance Defense Fund, the group who is defending Proposition 8 in court, has issued a statement on the Gill DOMA ruling, comparing same-sex marriage to polygamy.

115 Comments May 31, 2012

DOMA news round-up

By Scottie Thomaston

– Via Kathleen in Quick Hits, audio arguments are available from the DOMA challenge Cozen O’Connor v. Tobits are available here. Jacob covered the case here at P8TT. Thanks to Kathleen for putting this together.

– Also via Kathleen in Quick Hits, an update in McLaughlin v. Panetta, the challenge to DOMA as applied to the military:

Today, the federal defendants’ (“DOJ”) filed a motion asking for an extension of the deadlines to answer the plaintiffs’ complaint and respond to plaintiffs’ motion for summary judgment until 21 days after the 1st Circuit Court of Appeals decides the Massachusetts DOMA cases (Massachusetts v. HHS, No. 10-2204, and Gill v. OPM, No. 10-2207).  Plaintiffs consent to the motion.

UPDATE April 22: DOJ’s motion granted.

1:11-cv-11905 Order 4-22-12

13 Comments April 25, 2012

Part 1 – For the first time, a challenge to the Defense of Marriage Act is heard by an appeals court

By Scottie Thomaston

For an overview of the trial and what was at stake today, click here for a preview piece

The First Circuit has just wrapped up its oral arguments in Gill v. OPM/Massachusetts v. HHS, the first challenge to the Defense of Marriage Act that has reached an appeals court and a possible vehicle for a future Supreme Court challenge to the discriminatory Act. As we noted yesterday, P8TT was not in Boston to cover the hearing due to the court’s ban on electronic devices in the courtroom. The audio from the hearing is now up on the court’s website, however there is a notice that because of a technical malfunction, the first 18 minutes were not recorded. We will keep checking back for updates and to see if the issue was resolved.

I’ll split the arguments up into separate posts. First up is the DOJ.

Acting Assistant Attorney General Stuart Delery’s argument

Arguing for the Justice Department, Acting Assistant Attorney General Stuart Delery of the Civil Division of the DOJ says that the Government’s position is that the Defense of Marriage Act cannot be defended on any basis, whether under rational basis review – the most relaxed standard of review and one that most laws pass – or some form of heightened scrutiny. The DOJ of course decided back in February of last year that laws targeted at gays and lesbians should be reviewed under heightened scrutiny. Delery was questioned by a judge about what should happen under rational basis review, and he informed the judge that the DOJ takes no position on that question.

Delery goes through the listed justifications for the Defense of Marriage Act, first discussing ‘traditional notions of morality.’ He points out that at least since Lawrence v. Texas, traditional notions of morality can’t be used by themselves to justify laws. Making the point that the law is based on animus for gays and lesbians – another prohibited basis for lawmaking – he quotes Romer v. Evans and US Dept. of Agriculture v. Moreno‘s proposition that a “bare… desire to harm a politically unpopular group” is not a legitimate state interest for a law to be sustained under rational basis review, let alone something that would pass a more heightened form of scrutiny.

Delery then discusses the next purported justification for the Defense of Marriage Act: child-rearing. Conceding that “creating a stable environment for procreation and child-rearing” is an important governmental interest and that many laws are structured particularly to facilitate those ends, he tells the judges that there’s no reason to believe that the same-sex parents who are married under state law as the Gill plaintiffs are should be considered less than fully capable parents. He points to studies that show children raised by same-sex parents are just as likely to be happy and successful as those raised by opposite-sex parents.

Aside from that, he tells the panel of judges, same-sex couples who are married are disallowed government benefits because of the Defense of Marriage Act but there are no attempts made by the government to assure married opposite-sex couples will procreate before they gain access to their benefits. Married opposite-sex couples are entitled to government recognition of their relationships whether or not they meet that particular burden.
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48 Comments April 4, 2012

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