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Filed under: Golinski

DOMA: Golinski v. OPM, plaintiff files brief in support of Supreme Court hearing her case

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.

11 Comments July 24, 2012

Gill, Golinski and Windsor: what it all means for DOMA at the Supreme Court

By Jacob Combs

Yesterday, Scottie analyzed the petition for certiorari filed with the Supreme Court by lawyers for Edie Windsor, a widowed New Yorker forced to pay over $350,000 in estate taxes after the death of her wife.  Windsor’s lawyers asked the Court to skip an appellate review by the Second Circuit Court of Appeals of a district court judgment in Windsor’s favor ruling DOMA unconstitutional.  The Windsor case is now the third DOMA case to be presented to the court, along with with a case out of California called Golinski, which the Department of Justice has asked the Supreme Court to take up before review at the Ninth Circuit Court of Appeals, and a case out of Massachusetts called Gill, in which the First Circuit Court of Appeals upheld a district court decision invalidating the statute.

Scottie’s post yesterday delved into the technical details of the three cases, especially Windsor, so I thought I’d take a broader look today at what the current landscape for DOMA litigation looks like.  In truth, the last month has completely changed the calculus regarding DOMA’s chances at the high court: before the Justice Department’s filing in Golinski, only the Gill case was at the point where Supreme Court review would normally be requested, and while the case certainly presents issues of extreme importance, there was specultaion that the Supreme Court might wait until more circuit courts ruled on the matter.  But with the Golinski and Windsor requests now filed, the Supreme Court has before it cases from three different circuits, each applying (or challenging) the distinct legal precedent of those circuits.

This is not to say the Supreme Court will not still wait for the Golinski and Windsor cases to go through the normal appellate process, which might produce what is called a “circuit split,” in which some circuits would strike DOMA down (as the First Circuit has) and others would uphold it.  But the concurrent petitions give the Supreme Court less of an incentive to do so, especially given DOMA’s remarkably poor track record so far in the court system: no judge has upheld DOMA as constitutional in recent years, and judges appointed by presidents of both political parties have declared it in violation of the U.S. Constitution.  Although each of these opinions has relied on distinct legal reasoning, the judicial consensus right now (as represented perhaps most succinctly by the 3-0 vote of a First Circuit panel with two Republican appointees and one Democratic appointee upholding a lower court ruling invalidating DOMA) is that the law simply doesn’t pass constitutional muster.

Perhaps the aspect of the triple petitions that makes the path forward for DOMA increasingly intriguing is that the three cases offer three unique paths forward on the issue of scrutiny, which of course is a significant one for the future of LGBT rights litigation at large.  The three lower court decisions being presented to the Supreme Court each offer their own unique opinion on the proper level of constitutional scrutiny courts should give to laws that discriminate against LGBT people.

In Golinski, Judge Jeffrey White decided that previous Ninth Circuit decisions mandating rational basis scrutiny were based on outdated law, and struck DOMA down under heightened scrutiny.  In Windsor, Judge Barbara Jones ruled that rational basis scrutiny sufficed in making a decision on the statute’s constitutionality, and declined to consider the necessity of heightened scrutiny.  And finally, the First Circuit, ruling in Gill, modified district court Judge Joseph Tauro’s reliance on rational basis classification and instead laid out an increased level of ‘rational basis plus’ scrutiny based on DOMA’s affect on a historically disadvantaged class and the federalism concerns inherent in its passage.

The Supreme Court will decide the scrutiny issue entirely on its own, and will be under no obligation to follow the guide of the lower courts.  But the three different constitutional reasonings in Gill, Golinski and Windsor nonetheless give the Court issues to chew on both in private and at oral argument.  Of course, that is assuming that the high court decides to take up the two latter cases before they are considered at the appellate level.  As usual, this is all crystal ball-style court-watching.

But I believe Edie Windsor’s case is important because it demonstrates in an incredibly eloquent and clear way how we should be looking at DOMA.  The Gill and Golinski cases were relatively complex ones, with arguments made about health insurance, survivorship benefits, joint tax filing, and federal infringements on the rights of the states.  The Windsor case is at its heart a much simpler one.  Edie Windsor was forced to pay an incredibly large amount of money after the death of her partner, despite the fact that the state they lived in recognized them as a married couple.  If she had simply been married to a man, she wouldn’t have had to do so. Notwithstanding the arguments made about the legislative intent of DOMA of the possibility of moral opprobrium as a force behind its passage, can there possibly be a rational governmental objective, in 2012, to punish an American citizen in this way?  I can’t think of one, and whether the Supreme Court takes up that question, hopefully sooner rather than later, I am sure that at least five justices won’t be able to think of one either.

12 Comments July 17, 2012

Over 70 cities and corporation file amicus brief against DOMA in Golinski case

By Jacob Combs

Updated with a link to the full brief.

The Seattle Times reported earlier this week that the city of Seattle is joining seven other cities in opposing the constitutionality of the Defense of Marriage Act in court in the case of Golinski v. OPM.  In a new brief filed on Tuesday, over 70 business and municipal employers urged the Ninth Circuit to uphold a district court’s ruling that DOMA violates the U.S. Constitution, specifically addressing the impact that the law has on employers in the way it forces them to discriminate against their own workers:

The House of Representatives argues that Congress, through DOMA, sought to impose a uniform rule of eligibility for federal marital benefits.3    The perspective of the American employer who must implement DOMA is very different. Because marriages are celebrated and recognized under state law, a federal law withholding marital benefits from some lawful marriages, but not others, creates a non-uniform rule. Employers are obliged to treat one employee spouse differently from another, when each is married, and each marriage is equally lawful. In this brief, amici show how the burden of DOMA’s dual regime is keenly felt by enterprises that conduct operations or do business in jurisdictions that authorize or recognize same-sex marriage.

Joining Seattle in the brief were the cities of San Francisco, New York, Boston, Cambridge, Santa Monica, Los Angeles and West Hollywood and a wide range of major businesses, among them Levi Strauss, Microsoft, McGraw-Hill, CBS, Starbucks, eBay, Xerox, Viacom, Gap and Google.

What makes the new Golinski brief so powerful is that it addresses specifically the ways that DOMA harms American businesses by straining the relationship between employers and employees and interfering with companies’ efforts to create transparent, fair work places.  As the companies wrote in the brief, “DOMA forces amici to investigate the gender of the spouses of our lawfully- married employees and then to single out those employees with a same-sex spouse,” requiring businesses to incur the cost of providing fair and equal benefits to their gay and lesbian employees should they choose to do so.

Perhaps even more significantly, the new brief argues that DOMA essentially prohibit companies from conducting business according to their own corporate missions and instead forces them to affirm discrimination that they disagree with.  As the amici brief concludes:

Our principles are not platitudes.  Our mission statements are not simply plaques in the lobby.  Statements of principle are our agenda for success: born of corporate experience, tested in laboratory, factory, and office, attuned to competition.  Our principles reflect, in the truest sense, our business judgment.  By force of law, DOMA would rescind that judgment, and direct that we renounce these principles, or worse yet betray them.”

If this employers’ brief demonstrates anything, it shows just how short-sighted and narrow the determination to pass DOMA was in the first place.  Congress put the law into place with minimal research and fact-finding,  doing it merely to set in stone a government-dictated restriction predicated upon the prevailing morals of the day.

But American society and American business have changed since 1996.  Today, over 86 percent of Fortune 500 companies protect their gay and lesbian employees from discrimination.  Overwhelmingly, American business is of the belief that gays and lesbians should be treated equally to heterosexuals.  It’s past time for our government to do the same.

13 Comments July 12, 2012

House Democratic Leader Nancy Pelosi files amicus brief attacking DOMA in 9th Circuit case Golinski v. OPM

By Scottie Thomaston

This morning, House Democratic Leader Nancy Pelosi, along with Congressman Jerrold Nadler (D-NY) and 130 House members filed an amicus curiae (“friend of the court”) brief in Golinski v. Office of Personnel Management in the Ninth Circuit Court of Appeals. The case is currently scheduled for oral argument on September 10 at the Ninth Circuit. And last week the Justice Department filed a petition for a writ of certiorari to the Supreme Court in the case. Since the Justices’ summer vacation doesn’t end until after oral argument in the case, it will proceed, as they will not have an opportunity to decide on whether or not to take the case until late September or early October.

The Bipartisan Legal Advisory Group (BLAG) is defending the law on behalf of the House, but no Democrats voted to allow BLAG to defend the case.

According to the summary of the brief, the main argument House Democrats make is that DOMA was passed quickly and without much discussion. The conclusion that can be drawn from that according to the brief is that it was passed simply to disparage gays and lesbians. House Democrats also suggest that heightened scrutiny applies to cases affecting gays and lesbians:

Heightened scrutiny applies: the brief agrees with Justice Department’s position that lesbians and gay men are an identifiable minority group that lack sufficient political power to obtain the consistent and favorable treatment of lawmakers; as a result, they need the protection that heightened judicial review provides.

  • Congress’s treatment of gay men and lesbians illustrates that this group has been unable to prevent harmful laws or achieve desired policy results that directly impact their lives.
  • Gay men and lesbians are a historically disfavored minority that has often been targeted for legislative action based on stereotypes and bias, making it inappropriate for courts to grant laws like DOMA the same presumption of validity afforded to most acts of Congress. Instead, laws that single out gay men and lesbians for harm warrant judicial skepticism and heightened review. This requires the government to show that Section 3 serves a significant federal interest, and even BLAG seems to concede that it loses under this standard.

The brief suggests that were judges disinclined to apply heightened scrutiny, the law would not survive under rational basis scrutiny, and “[n]one of the reasons provided by Congress in 1996 or created in response to litigation rationally serve a legitimate federal interest”. House Democrats also write that DOMA undercuts state sovereignty:

Section 3 does not protect, but undercuts, state sovereignty. Section 3 prevents states that now allow same-sex couples to marry from ensuring these states and the federal government treat these couples the same as other married couples.

The list of signatories is here and the brief is here.

23 Comments July 10, 2012

Is the Justice Department’s Supreme Court petition in Golinski a message for Justice Kagan?

By Jacob Combs

H/t to Kathleen for posting this in Quick Hits

Over on her blog Hunter of Justice, Georgetown law professor Nan Hunter has an analysis of the Department of Justice’s unexpected move last week asking the Supreme Court to take up the California DOMA case Golinski v. OPM before any decision is made at the appellate court level.  The administration also recently filed for Supreme Court review of the consolidated Massachusetts DOMA case, in which the First Circuit unanimously declared the law unconstitutional.

In the briefing requesting certiorari in Golinski, the Justice Department wrote that the case addresses matters “of exceptional public importance and call for definitive and timely resolution.”  But Hunter, reading between the lines, thinks there is another reason the Justice Department would like to see Golinski taken up by the Supreme Court either concurrently or in a consolidated case with the Massachusetts proceeding: the possibility that Justice Kagan would recuse herself from any DOMA decision in the Massachusetts case.

Once again, this is an exercise in Supreme Court prophesizing, but as Hunter wrote in an earlier post regarding the First Circuit’s decision in Gill v. OPM, “When Justice Kagan was Solicitor General, she was almost certainly involved in Justice Department decision-making about whether and how it should defend DoMA, a federal law. Assuming that she was, she will have to recuse herself from any participation in Massachusetts v. HHS when it reaches the Supreme Court.”  Since recusals only pertain to the specific case at hand and not the wider legal issue, Kagan would be under no obligation to recuse herself from Golinski, which was argued after her nomination to the high court and which she therefore likely had no involvement in.

One important caveat to all this, of course, is the fact that Supreme Court recusal policy is relatively murky.  It is up to the individual justices themselves to decide whether or not a recusal is appropriate, and of course there is no higher court to appeal to for a recusal.  Therefore, if Justice Kagan decides that her work in the Solicitor General’s office on DOMA does not merit recusing herself from the case (as she did in the health care proceedings), she won’t do so.

For the sake of argument, if Justice Kagan were to step down from the Gill case, the most likely outcome would be a 4-4 split decision with Justice Kennedy joining the three remaining liberal justices to strike DOMA down and the four conservatives voting to uphold it.  Most court watchers believe that Justice Kennedy is likely to vote to strike DOMA down, considering the fact that his libertarian leanings make such a law impinging personal liberties particularly odious to him (indeed, his vote to strike down the Affordable Care Act shows just how strong his feelings towards individual liberties are).  Because of his vote to uphold the ACA, there has been some speculation that Chief Justice John Roberts will join the liberals in striking DOMA down, but given his past voting record, there is no clear evidence that he would do so.

A 4-4 tie would be good news, but not great news.  On the positive side, the split would uphold the First Circuit opinion, meaning that DOMA would be effectively struck down in the First Circuit (that is, Puerto Rico and most of New England).  Unfortunately, such a decision would not be binding upon the rest of the United States.  Of course, any future DOMA case that came to the Supreme Court would likely be heard by Justice Kagan, who would probably then vote with the Kennedy/liberal alliance that might strike DOMA down in the Massachusetts case.  At that point, DOMA would finally be history across the country.

Golinski, of course, is the DOMA case that is furthest along in the court system behind Massachusetts, which has already been presented to the Supreme Court for review.  Golinski makes the obvious choice for a second case to clarify a 4-4 split in Massachusetts, so Hunter’s argument that the Justice Department’s request to expedite Golinski is an attempt to head off the uncertainty of a 4-4 tie is based on sound logic.

To do some further tea leaf reading, the request to move Golinski straight to the Supreme Court most likely reflects the view of the Justice Department that the likelihood of success for the administration on a DOMA case at the Supreme Court is high, a view which I believe is correct.  DOMA is standing on its last legs, and it is time for the high court to declare once and for all that the law is discriminatory.  If an expedited Golinski means that Justice Kagan can help make that a reality in a way that she cannot in Massachusetts, the Justice Department is pursuing a long-sighted and clever strategy indeed.

21 Comments July 9, 2012

DOMA: Analyzing plaintiff’s answer brief in Golinksi v. OPM, challenging DOMA

By Scottie Thomaston

On June 5th, the Bipartisan Legal Advisory Group’s (BLAG) opening brief defending DOMA in Golinski v. Office of Personnel Management (a lawsuit brought by Lambda Legal) at the Ninth Circuit Court of Appeals was released, and we analyzed it here. The plaintiff’s answer brief was filed July 3.

Since then, the Justice Department has petitioned for certiorari to the Supreme Court in Golinski, despite the fact that briefing continues in the Ninth Circuit and oral argument in the appeals court is set for the week of September 10. We are told by Lambda Legal’s national legal director Jon Davidson that oral arguments in the case are still scheduled and briefing will continue. Unless and until the Supreme Court grants a writ of certiorari in Golinski nothing changes at the Ninth Circuit.

In its summary of argument in the answer brief, plaintiffs write that DOMA is an “unprecedented departure from this nation’s federalist tradition”, and quotes from the recently-decided Health Care Cases:

Last week Chief Justice Roberts observed that “sometimes ‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’ for Congress’ action.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 2012 U.S

It suggests that DOMA cannot satisfy even rational basis review, though plaintiffs think judges should apply heightened scrutiny (which it would definitely fail.) Plaintiffs’ main arguments can be distilled to this one paragraph in the summary:

Regardless of the level of review, DOMA cannot be justified by BLAG’sproffered interests. DOMA was no cautionary act, but rather a blunt, preemptivelaw that foreclosed, rather than provided for, any future movement on federal recognition of same-sex couples’ valid marriages. The Supreme Court has madeclear that efforts to preserve the public fisc cannot be drawn along invidious lines ,and in any event DOMA costs rather than saves money for the federal government. BLAG’s claim that Congress intended DOMA to “preserv[e] prior legislative judgments” merely reifies Congress’ intentional decision to treat same-sex spouses differently, rather than supplying a reason for doing so. And DOMA bears no relation to who becomes a parent and hurts rather than helps an entire class of children solely because their parents are same-sex spouses.

More below the fold…
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9 Comments July 6, 2012

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