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

DOMA trials Gill/Massachusetts Golinski

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


  • 1. Prop 8 Trial Tracker » B&hellip  |  July 3, 2012 at 4:58 pm

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  • 2. Scott Wooledge  |  July 3, 2012 at 6:08 pm

    Wow. My question is, how common is is for a case to skip a level of review as DOJ is asking? What are the chances SCOTUS will say yes and allow the combination?

    It seems for the sake of judicial economy, they should say yes.

  • 3. Matt N  |  July 3, 2012 at 11:25 pm

    In the Petition for a Writ of Certiorari, the solicitor general mentions a set of cases that have 'skipped' the circuit court level. He lists around 10 cases.

  • 4. Bill S.  |  July 3, 2012 at 6:09 pm

    The way they frame the question to the Supreme Court decides the issue of what to do with couples who are married but live in states that don't recognize it:

    "Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the lawsas applied to persons of the same sex who are legally married under the laws of their State."

    A Texan couple married in Massachusetts is not married under the laws of *their* state.

    Now the Supreme Court does not have to answer this question the way it is worded, but this could direct the Supreme Court into issuing a ruling that would resolve this issue.

  • 5. Matt McIrvin  |  July 3, 2012 at 6:17 pm

    Also, they are specifically talking about Section 3.

    Section 2 is what guarantees that no state has to recognize another state's same-sex marriages, and that is not being contested (here, at least).

  • 6. Steve  |  July 3, 2012 at 7:45 pm

    Section 2 is kind of redundant. There is a public policy exception to the Full Faith and Credit Clause that allows states to ignore other state's laws if they go against their clearly stated public policy (such as an anti-gay law or constitution)

  • 7. fRaNkLiN  |  July 3, 2012 at 8:18 pm

    Uh, no. There is no such exemption. Writing anti-gay discrimination (or any other kind of discrimination) into a state constitution doesn't mean that it is somehow constitutional under the federal constitution guarantees.

  • 8. Scott Wooledge  |  July 3, 2012 at 8:28 pm

    Well, yeah, there is such an exemption in practice.

    The Supreme court has not yet decided that denying same sex couple marriage IS a denial of equal protection garantee. And when they do examine the question they could still decide denying gays the right to marry is not a denial of a right. We'll disagree but their word trumps ours and they make the law of the land.

    So your declaration is a compelling argument, but premature, and not the law of the land.

  • 9. Jamie  |  July 4, 2012 at 6:48 am

    That doesn't mean there is an exemption.

  • 10. Scott Wooledge  |  July 4, 2012 at 9:19 am

    Argue with the Supreme Court, not me, from 1939, the Court in Pacific Employers Insurance v. Industrial Accident:

    "[T]here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. See Wisconsin v. Pelican Insurance Co., 127 U.S. 265; Huntington v. Attrill, 146 U.S. 657; Finney v. Guy, 189 U.S. 335; see also Clarke v. Clarke, 178 U.S. 186; Olmsted v. Olmsted, 216 U.S. 386; Hood v. McGehee, 237 U.S. 611; cf. Gasquet v. Fenner, 247 U.S. 16. And in the case of statutes…the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.[14]"

    The Supreme Court has allowed states to be exempt from FF&C under some circumstances. No one knows if the Supreme Court will or will not allow such an exemption when a same-sex couple married in New York asks Alabama to recognize their marriage, because no one to my knowledge has tried it yet.

    I'm glad you and Steve are so very confident that Alabama will easily acquiesce with the request. It's very optimistic. I'm guessing the AG and Gov will fight it.

  • 11. Steve  |  July 4, 2012 at 10:51 am

    Wha? I'm with you here. I never said that a state will easily recognize an out-of-state SSM. It's why I brought up the exemption in the first place.

  • 12. Scott Wooledge  |  July 4, 2012 at 11:12 am

    Oops, I apologize. Lost in the thread. I meant Franklin. My bad.

  • 13. Steve  |  July 4, 2012 at 7:20 am

    The exemption isn't part of the law as written. It's a principle the Supreme Court has developed long ago to determine how to apply the Full Faith and Credit Clause. How it applies to same-sex marriage is unsettled and I don't think there have been many attempts to test it. Most of them were about smaller things like birth certificates and other records – and even there the record is mixed.

    In practice it means is that until SCOTUS decides that same-sex marriage is a fundamental right, lower courts will be very reluctant to force states to comply with other state's laws.

  • 14. Mike in Baltimore  |  July 4, 2012 at 12:39 am

    In other words, Mississippi and/or Alabama and/or South Carolina and/or Texas and/or Louisiana, etc. could make a very clearly stated public policy, and reinstitute slavery.


    And in 1967, when SCOTUS ruled in the Loving case, the prohibition on anti-miscegenation applied only to Virginia, not to any other state that had anti-miscegenation laws.


    How about Lawrence? That SCOTUS decision only applied to Texas, not to any other state.


  • 15. Matt N  |  July 4, 2012 at 12:59 am

    No, because it's against the constitution to have a public policy that implements slavery.

    It's not yet been declared that having a public policy against same-sex marriage is unconstitutional–that's what Scott was getting at, I think.

  • 16. Bill S.  |  July 4, 2012 at 5:33 am

    Matt is correct. There are varying degrees of deference states must give must give to *judgements* rather than *acts.* States must nearly always respect the judicial judgements of other states but are not required to replace their own laws with those of another state.

    Mike: No, the Supreme Court's rulings set binding precedent throughout the country. When they rule that interracial marriage bans are unconstitutional, it applied to the entire country, not just the state being sued.

  • 17. Jamie  |  July 4, 2012 at 6:49 am

    Therefore if a state has judged that gay and lesbian couples should be permitted to marry, then other states must recognize those marriages.

  • 18. Steve  |  July 4, 2012 at 7:08 am

    You'd think so. but federal courts are very reluctant to do that. Especially if it's some kind of blanket change that affects tons of people. Jurisprudence is very complicated in that area and there is no guarantee that at this moment SCOTUS would legalize same-sex marriage throughout the country like that. They are supposed to interpret the law and not at politics, but in reality they of course play politics. When Loving was decided, interracial marriage was already legal in all but the south.

    However, courts are more willing to enforce judgments that apply to one person only. For example if you adopt a child in one state (which is essentially a court order), other states are generally required to recognize that, even if they don't allow gay people to adopt themselves. The whole thing is pretty messed up.

  • 19. Bill S.  |  July 4, 2012 at 9:09 am

    State courts do not set national precedent, so no. If the Supreme Court ruled this, then yes, but this is not the constitutional question the Supreme Court would be answering here

    By judgements I mean court orders. You cannot flee a state to avoid having to comply with a court order, for example: child custody. If you lose child custody, you can't kidnap your child across state lines and expect to re-gain custody. The judgement of the first state's court still stands.

    The clause mainly exists to prohibit people from re-litigating the same issue that has already been resolved in another state in the hopes of getting a favorable outcome.

    If a state does recognize same-sex marriages, then they do not have to recognize out-of-state same-sex marriages, although they would probably have to recognize judicial judgements arising from that marriage from out-of-state: such as a child's revised birth certificate issued by the marriage-equality state listing a same-sex partner as the legal parents. (There is currently a circuit split on whether or not the Full Faith and Credit Clause can require a non-marriage equality state to have to issue a revised birth certificate itself if another state grants a same-sex adoption.)

    The only same-sex couples who could probably benefit from the Full Faith and Credit Clause are those who have resided for a long time in a marriage-equality state (and thus have access to courts that recognize that marriage), have judgements from those courts regarding aspects of their marriage, and then move to a non-marriage equality state.

  • 20. Bill S.  |  July 4, 2012 at 9:09 am

    EDIT: If a state does *NOT* recognize same-sex marriages, then they do not have to recognize out-of-state same-sex marriages.

  • 21. Mike in Baltimore  |  July 4, 2012 at 4:35 pm

    Ergo, if a state does not allow 1st cousins to get married, then they can ignore that marriage if conducted in another state that allows it.

    Example: In Pennsylvania, 1st cousins cannot get married, but they can in Maryland. Ergo, Pennsylvania doesn't recognize those 1st cousin marriages conducted in Maryland.

    Except, in reality, they do. Both Maryland and Pennsylvania issue documents called marriage licenses. A marriage license is, in effect, a state document, in effect a court document, but marriage licenses are NOT issued through a court but normally through a state or county office. A marriage that was valid in Maryland is recognized with no questions in Pennsylvania (or has been when it's been between a heterosexual couple).

    So if a marriage license issued in the state of Maryland is recognized in Pennsylvania for a marriage that could not be conducted in Pennsylvania, why is it different when the spouses are the same gender? After all, a marriage license is a marriage license is a marriage license.

  • 22. Steve  |  July 4, 2012 at 5:14 pm

    They could ignore a first cousin marriage it if they *wanted* to. That's the point. Denial or recognition is not automatic.

  • 23. Frisky1  |  July 4, 2012 at 6:21 pm

    The marriage evasion laws are examples of states not recognizing each other's marriages, and were mostly enacted to keep young people or interracial couples from crossing state lines and marrying.

    Perhaps you recall Mitt Romney's attempt to use Massachusetts 1913 marriage evasion law to keep gay non Mass citizens from coming to the state to get married. Wisconsin still criminalizes marriages of its citizens (or people who move to Wisconsin) who have gotten marriages that aren't recognized in Wisconsin–such as marriages between 13 to 15 year olds (legal in Texas apparently). Up to a $10,000 fine and 9 months in prison.

    SCOTUS has protected interracial couples from such public policy exceptions to full faith and credit, but even the Loving decision didn't force the states to recognize each others marriages in all cases, only when the reason not to recognize is constitutionally unsupportable such as because of race. 14 year olds, and the gays, and any other group not yet recognized by SCOTUS as a suspect class, but allowed to marry in at least one state, are still subject to them until SCOTUS says otherwise. That is why DOMA section 2 is redundant.

  • 24. Lymis  |  July 5, 2012 at 5:40 am

    Mike, I don't think anyone is arguing the underlying validity of your point regarding how things should be. That's independent of how they legally ARE.

    Truth is, if a state passed a Constitutional amendment that for the purposes of state law, only marriages between people who no closer relations that second cousins will be valid or recognized, it would raise the same legal questions, and under the current interpretation, first cousins would not be recognized as married by the state.

    Whether they would or would not be recognized by the Federal government remains unsettled – because under DOMA nobody has had to deal with the federal recognition of a marriage that isn't recognized by the state of residence. In theory, you could have a situation where the state does not recognize a marriage that the Feds do. So far we've never seen such a situation. But it's coming.

  • 25. Scott Wooledge  |  July 5, 2012 at 7:59 am

    They've also never really addressed the first cousin thing because, frankly no one ever cared enough to make an actual Federal Case about it.

    Say you marry your first cousin in Alabama where it's legal, and move to Michigan where it's illegal to marry your first cousin.

    Now, you go to file your state income taxes jointly as a married couple, what happens? Nothing. They don't do the due diligence to make sure you're not married to your cousin the first time you present yourself as married to the state of Michigan. They just assume you have a legal union, and aren't all hyperactively panicking, "We can't recognize first cousin marriages! Maybe they go for that in Alabama, but they're illegal in Michigan!!!"

    Too, the Federal Gov't doesn't discriminate between first cousin and non-first cousin marriages when doling out benefits.

    And I agree, if DOMA is struck down, we're likely to see in Red States the opposite of what's going on in marriage equality states, the Fed will recognize the marriage, while the state will not. (Presuming they legally wed in a ME state.)

  • 26. Mike in Baltimore  |  July 5, 2012 at 7:23 pm

    Actually, the rule is 'married in accordance with the laws of the jurisdiction in which you are married.'

    Maryland allows first cousin marriage, Pennsylvania doesn't. First cousins marry in Maryland, and plan to live in Maryland the rest of their life, but for some reason, they move to Pennsylvania. The couple was legally married in Maryland, but now are not legally married in Pennsylvania?

    And if DOMA is struck down, what other reason can the Red states use to not recognize the Full Faith and Credit to the public Acts (which means laws), Records (such as licenses authorized by law), and judicial Proceedings (such as judicial rulings) of every other State?

    (By the way, the Full Faith and Credit clause can be found in the US Constitution at Article IV, Section 1. And the clause contains the word 'shall', which is mandatory, not permissive.)

  • 27. Steve  |  July 5, 2012 at 9:07 pm

    Again, the Supremes have LONG since established that they see a difference in the respect owed to judgments vs laws. "State's rights" and all that crap…it's how it is, no matter how stupid and impractical it is in a modern society.

    Given that there are always laws specific to same-sex marriage (and marriage in general for that matter), there is really no chance they'd see it as anything but a state-specific law that's not universal.

  • 28. Scott Wooledge  |  July 5, 2012 at 9:49 pm

    You're very stuck on this idea that if gays are married in one state, every other state MUST acknowledge their relationship as proscribed by the FF&C.

    This isn't how legal experts at GLAD, Lambda, ACLU etc, see it playing out at all.

    Most everyone I"ve spoken to and read opinions on seems to agree, even if section 2 of DOMA is killed or repealed, there will still be a big fight (probably going up to the SCOTUS) to determine the outer limits of state sovereignty to define marriage.

    If Section 2 goes away, some state will still say "Oh hell no! We ain't giving the gays marriage rights" and the only authority in the country who can compel them to acquiesce is the Supreme Court. (Well, they could try a Federal statute, if it could get through Congress–doubtful–but AL, MS or LA Attorneys General would probably still challenge that in court, like they states did the Affordable Care Act.)

    I guess time will tell which of us is correct.

  • 29. Steve  |  July 5, 2012 at 8:39 am

    Good point about things as they are vs what they should be.

    I kind of hinted at this before, but haven't spelled it out. We can all agree that the current legal situation is completely fucked up. In a 21st century society with very high mobility, you shouldn't have your legal status change when you travel in the same country. Unfortunately, to do the peculiar way these laws developed over the last two century, that's what people are stuck with.

  • 30. Mike in Baltimore  |  July 5, 2012 at 7:15 pm

    Actually, first cousins cannot get married in Pennsylvania, but they can in Maryland. But when the 'happily married couple' moves back to Pennsylvania, they are recognized as married by both Pennsylvania AND the Federal government.

    Just by coincidence, marriage in either state since those laws became effective have been a man and a woman. Next January, after Maryland almost certainly will start allowing same gender marriages, Pennsylvania might decide to look at the marriages in the state, and start to determine if they are legal or not. Then again, Pennsylvania might not look at marriages.

    But until then, they haven't, and they don't, look at marriages except to make sure that the couple was married within the laws of the state in which they were conducted.

    Another example – Mississippi states that a person who is younger than their 21st birthday cannot get married unless they have parent/guardian/judge approval. Yet, if a couple gets legally married at age 18 in a neighboring state, then they move to Mississippi, Mississippi doesn't consider them 'not married' under Mississippi law.

  • 31. Scott Wooledge  |  July 5, 2012 at 9:53 pm

    "Yet, if a couple gets legally married at age 18 in a neighboring state, then they move to Mississippi, Mississippi doesn't consider them 'not married' under Mississippi law."

    Right. And that's only because the State of Mississippi doesn't really care that much about underaged brides to make it an issue. But if they did, you can bet they'd find a way to challenge that child-bride's claim to matrimonial rights.

    And there's precedent they'd be in their rights to do so.

  • 32. Lymis  |  July 5, 2012 at 5:35 am

    The point isn't just that the state does or doesn't recognize something. The exemption, if I understand it, applies to "strong public policy" – and things like constitutional amendments, whatever else they may reflect, certainly reflect strong public policy, as compared to, for example, the laws governing dog licenses.

    Depending on how the various lawsuits fall out, there may well be differences between states that don't allow marriage by law and states that have written it into their Constitutions.

  • 33. Steve  |  July 4, 2012 at 10:46 am

    The issue with the birth certificate illustrates the absurdity of this nicely. If a couple gets gay married and then goes to another state, then that state is (according to current law) not necessarily required to issue them a revised birth certificate. But if the couple gets the new birth certificate in the state that they got married in, they can transfer it to another state.

    It's the for same reason that gay couples are advised to do a second parent adoption if possible. Their own state may view them as legal parents due their status as a married couple (or CUed or DPed). But most other states can freely ignore that status and with it the legal consequences arising from it. They can't ignore the adoption, because it's a court order.

  • 34. Mike in Baltimore  |  July 5, 2012 at 7:03 pm

    Ah, yes, the Constitution does prohibit slavery. I guess I should not have used that as an example (but Steve DID state (and I quote): "There is a public policy exception to the Full Faith and Credit Clause that allows states to ignore other state's laws if they go against their clearly stated public policy (such as an anti-gay law or constitution). I guess what's he's saying is that Utah, if it feels the other states are nuts, and it states it loud and clearly enough, can go back to plural marriage? After all, the Constitution doesn't say anything about plural marriage, does it?

    And where in the Constitution is there EXPLICIT permission for a black person to marry a white person?

    And where in the Constitution does it state that the definition of sodomy can be determined by each state?

    I gave three examples, but you gave one definitive response, and then proceeded to ignore the other two, or act like the response to the first was the same response for the other two.

    So can we have some intellectual honesty and respond to EACH of the three cases I gave? And maybe in that process find out (again) that attorneys might be intelligent, but they are not the most intelligent of the intelligent all the time? That sometimes, they are really quite unintelligent, especially when it comes to precedent. As to precedent, ever look to see why something is precedent, and whether the precedent is or is not logical, or even applies to a particular case?

  • 35. Scott Wooledge  |  July 5, 2012 at 9:59 pm

    The explicit permission for interracial marriage came from Loving v. Virginia. Supreme Court declarations carry the weight of constitutional law (at least until they are overturned by a subsequent court).

    The explicit permission for sodomy came from Lawrence v. Texas.

    The Supreme Court has never weighed the question of if there is a Federal constitution right to same sex marriage, so there's no analogy to be made between your FEDERAL right to same-sex marriage, your FEDERAL right to interracial marriage and your FEDERAL right to sodomy.

    We have the unquestioned FEDERAL right to marry outside our race and engage in sodomy.

    We do not yet have the FEDERAL right to marry someone of our own gender. The Supreme Court has yet to declare it so.

  • 36. mtnbill  |  July 4, 2012 at 8:08 am

    Divorce is recognized as that is a judicial act–marriage is not considered a judicial act. For example, look at the development of the divorce industry in Nevada which promoted 'quicky' divorces in the 30's when most states made divorce very hard to get–NY was an example.

    There was discussion on how the courts handled the issue of inter-racial marriage when states differed on which marriages they would recognize at the time. Calif might recognize an inter-racial marriage, but VA would not. Or how closely one had to be related before marriage was prohibited.

    Of course, the development of the pensions, 401(k)'s, community property, etc. which has grown in importance since the 1950's has made the question of state recognition of marriage an important issue if only to answer the question who owns what if you move from a state which recognizes your marriage to one which does not. This question has prompted many of the recent questions as to whether a state can grant a divorce to a couple whose marriage it doesn't recognize. Aside from the political squawks that accompany such a discussion, it is hard question to answer. Also the VA/VT tussle on child custody and visiting rights.

  • 37. Mike in Baltimore  |  July 5, 2012 at 7:30 pm

    Yes, you are correct in that marriage is not a judicial act of a state.

    However, it is an event that occurs under the public Acts of a state, which means under the laws and regulations of the state. And a marriage license is most definitely a public record (same as birth and death records).

    And Article IV, Section 1 CLEARLY states: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

    'Shall' is the imperative, not the permissive.

  • 38. Scott Wooledge  |  July 4, 2012 at 9:27 am

    The slavery analogy fails because slavery is forbidden by the 13th amendment. So state could use the Full Faith and Credit clause exemption principle in the Constitution to justify a policy that is expressly forbidden by another part of the Constitution.

    Unfortunately there's no amendment expressly guaranteeing a right to same-sex marriage. We're still in the process of hammering out if that right is in the Constitution or not. Olsen and Boies and us are probably right, it's there, but so far, the Supreme Court has yet to agree.

  • 39. Walter  |  July 4, 2012 at 1:03 pm

    The Supreme Court denied certiorari in an adoption case out of Louisiana Oct. 2011. The parents two gay men adopted a child in New York. They then tried to have Louisiana issue a revised birth certificate. The district court and 3 judge appeals court ruled in favor of the parents. The state Attorney General fought relentlessly having the full fifth circuit appeals court overturn the decisions. Then, the Supreme Court denied certiorari. Louisiana maintained the adoption violated their public policy.

  • 40. Walter  |  July 4, 2012 at 1:04 pm

    for links to case

  • 41. Str8Grandmother  |  July 4, 2012 at 2:17 pm

    Walter, I remember that case very well. The State of Louisiana was an absolute shit. I read the vriefs and the Decisions. They really spit hairs, and for what? To deny a little baby boy to have both his parents on his birth certificate, the dad's were his legal co=parenys as the adoption took place in New York if I remember right. I see how the Judges came to their decision, in other words understood the case law, but it left a sour feeling in my stomach. For goodness sakes the Records person in Louisiana did't have to make such a big deal out of it. It is just one more denigration to sexual minorities. Just one more slap in the face. For crying out loud he is just a little boy.

  • 42. Str8Grandmother  |  July 3, 2012 at 7:24 pm

    Thank you Mister President!!!
    What a way to play offense Justice Department.
    Will have to read tomorrow, can't wait.
    Very very happy with this. I love these words,

    "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."

  • 43. DaveP  |  July 3, 2012 at 8:00 pm

    in other words – bring it aawn, bichezz!

  • 44. Fr. Bill  |  July 4, 2012 at 1:22 am

    OK it has been 46 years since I took civil procedure. SCOTUS is in recess. What is the 9th Circuit suppose to do now? Upon motion by one of the parties or maybe on their own couldn't they scedule the cas for en banc review?

  • 45. Sammy  |  July 4, 2012 at 6:20 am

    9th circuit aready denied initial en banc review. They are also going on summer recess but have already scheduled argument for september (if I remember correctly) so they would go ahead with their schedule unless and until the case is taken by SCOTUS over them.

  • 46. SamHandwich  |  July 4, 2012 at 8:57 am

    Pardon the off topic post, but in case you missed it, this was Andrew Sullivan's initial reaction to the president's "coming out" a few weeks ago… i think it's quite appropriate here..

  • 47. Tyler  |  July 4, 2012 at 9:06 am

    Possible solution to the full legalization/recognition problem:

  • 48. Bill S.  |  July 4, 2012 at 10:15 am

    From a legal standpoint this is simply not feasible. Even if we assumed that the Full Faith and Credit Clause required states to recognize out-of-state marriages, the clause also gives Congress the power to regulate how judicial records are recognized. This is DOMA Section 2. Congress would have to voluntarily repeal this section which would not happen for at least another 5–10 years.

  • 49. Str8Grandmother  |  July 4, 2012 at 2:18 pm

    5 – 10 years while we wit for "social change" to happen, sigh…

  • 50. Mike in Baltimore  |  July 4, 2012 at 4:44 pm

    So SCOTUS, under no circumstances, can address any issue except what the parties before it bring up? SCOTUS cannot address Section 2 if the parties don't address it?

    Your 'legal problem' is not true. SCOTUS can, and does, address issues not brought up by the parties to the issue.

  • 51. Scott Wooledge  |  July 4, 2012 at 6:58 pm

    It is true SCOTUS and other courts do occasionally address issues not brought up by parties. But, that's bad jurisprudence, as judges should endeavor to stick to just the issues at hand. That really is an example of "legislating from the bench" to seize an issue unrelated to the case and try to use the weight of the court.

    And usually it's motivated by a desire to see an endgoal. I'm not sure any of the Justices on the Supreme Court has a burning desire to improve the lives of LGBT people by taking on more than the parties before them present to them.

  • 52. Mike in Baltimore  |  July 5, 2012 at 7:46 pm

    So to solve one problem, the courts should ALWAYS ignore a different route (one that might solve the case once and for all) than the one they think available (which may or may not solve the problem), as they should NEVER solve the problem until someone comes forward with the magic suit?

    There is a reason for the court rules. Maybe some of those reasons were logical when instituted, but don't really apply now?

  • 53. Scott Wooledge  |  July 5, 2012 at 9:34 pm

    Are you talking "routes" or "issues?"

    I responded to you saying they can't bring up other "issues" which I took to mean questions before the court. As in, the DOMA cases are asking the court "Can the Federal Gov't refuse to recognize an existing, valid legal marriage from MA?"

    Another tangental issue, is "Is there a right to same sex marriage?" That's not an issue either BLAG or GLAD are asking the court to address. It's not an issue in the case.

    So, it would be inappropriate for a judge to say, "Gee, while we're on the topic, I think gays should be able to get married everywhere. I declare it so!"

    "Routes," indicates the legal reasoning and precedent a court may find to answer the question at issue, 10th amendment? 5th Amendment? Relevant statute? Relevant precedent? That it is appropriate for them to do. They can answer the issue at hand, but with a different justification than either party offered. It's unusual, and a little weird, but if it's grounded in sound legal reasoning and precedent, it's a good use of their position.

    I mean, that's part of being a judge, knowing existing law and applying it. But just applying it to the issue at hand.

  • 54. Bill S.  |  July 5, 2012 at 5:59 am

    They would only bring in Section 2 if they could not strike down Section 3 by itself without Section 2 getting caught in the fold. This isn't the case here as these two clauses are very easily severed. Not to mention that Section 2 is superfluous anyway.

  • 55. Caryn  |  July 5, 2012 at 1:14 pm

    The Full Faith & Credit Clause does not require the states to recognize out-of-state marriages. FF&C only applies to the judgments, orders and decrees of the courts of another state. A marriage is not a judgment, order or decree. See Baker v. General Motors Corp., 522 U. S. 222,

  • 56. Mike in Baltimore  |  July 5, 2012 at 8:10 pm

    But a marriage is conducted under the laws and regulations of a state, which is specifically and CLEARLY stated in Article IV, Section 1 of the Constitution. In fact, the first sentence reads: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." (Notice that judicial proceedings is listed AFTER the naming of 'public Acts and Records'? And maybe you don't know, but in the late 18th century [and by many to this day], state laws and regulations were referred to as 'public acts and records'.)

    Remember, the Constitution trumps SCOTUS.

  • 57. Steve  |  July 5, 2012 at 8:59 pm


    There is a difference between things as they SHOULD be and how things ARE. Nobody here is saying that the current interpretation of the law is right, good or ideal. But it's what the courts are stuck with. And given how has been precedent for over 70 years, it's not going to change any time soon.

  • 58. Mike in Baltimore  |  July 6, 2012 at 12:51 am

    And again, maybe the precedent was right and proper for the time and case it was instituted, but is it right for now?

    Just the concept of precedent can cause problems. Anyone want to deny that Baker is causing problems? Or the Pep Boys case in the Ninth Circuit?

    Precedent is holy writ, and you don't question holy writ? Maybe most RCCs don't, but that's not the way most Americans are taught. And maybe the legal profession should be taught what they are currently taught, but also that holy writ CAN be questioned, not just accepted like a sheep to the slaughter.

    If something is rotten in Denmark, you attempt to find what is rotten and how to correct what is rotten. Where is it written that when precedent causes problems, you can't look ALSO at figuring out why it is causing problems and what can be done to fix it (or even what should be done, even it the Constitution won't allow it)? Court rules did not magically appear. Court rules came into existence because the court and the legal profession and legislators and others said 'this is the way we want it to be'. And not everyone agrees with the purpose of those rules, and/or the way they are used.

    Tradition says a court shouldn't try to fix a problem if that solution isn't brought up in the arguments. Maybe a court should say "You didn't bring it up in arguments, but here is how we will fix this problem – by looking at another section, and proceed from there."

  • 59. Scott Wooledge  |  July 6, 2012 at 1:45 am

    Well, our entire judicial system, and virtually every other advanced one in the world is based on the concept of legal precedent.

    It isn't going anywhere, except perhaps by nuclear holocaust.

  • 60. Steve  |  July 6, 2012 at 5:27 am

    Common law is based on precedent. Civil law isn't, and the vast majority of countries use it. In civil law systems, judges interpret only the law, not other judgments. They can look at other cases for guidance, but they aren't bound by them – except decisions by the highest court(s), which are the ultimate authority on how the law is to be interpreted. In practice, there is of course a certain legal tradition to be adhered to, but it's not just developed by the courts and can't just be based on a single case. Academic discourse about the law has a much greater rule and is cited in the rulings themselves.

  • 61. Scott Wooledge  |  July 6, 2012 at 2:20 pm

    Regardless, it's kind of silly for us to complain about the problems precedential law creates. It ain't going anywhere in the United States anytime soon.

  • 62. Steve  |  July 6, 2012 at 2:52 pm

    I know and I certainly don't want to debate the pros and cons. I just wanted to point out that stating that virtually every country's legal system is based in precedential law is wrong.

  • 63. Mike in Baltimore  |  July 8, 2012 at 6:33 pm

    Actually, Bill, if you look at the specific sentence you are referencing, it says:
    "And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

    It does NOT say that Congress can decide if any acts, records and proceedings can be deemed to be non-transferable from one state to another. It says Congress can, by law, determine how such records are to be proved, and the effect of them. The rule, the act, the records, the judicial proceeding, is/are still there, but the manner of the proof can, if it so desires, be determined by Congress. If it means a letter from one specified state official to one in another state is sufficient, so be it. if it means transmitting a copy, so be it. If it means transmitting the original, so be it. If it means the original is kept in place in the originating state, and an official of another state must travel, so be it.

    Thus Congress does NOT have to 'voluntarily' repeal Section 2 for it to disappear.

  • 64. Supreme Court DOMA Madnes&hellip  |  July 4, 2012 at 9:39 am

    […] a Ninth Circuit Case as well before the case even makes oral arguments in the Appellate Court.  AFER has […]

  • 65. Tyler O.  |  July 4, 2012 at 11:20 am

    Is there any way this could delay review from SCOTUS? What if they agree to hear both at once but want Golinski to go through the appeals process? I'm having trouble understanding why DOJ would bring in another case and potentially complicate matters when the first was certain to be heard the next term.

  • 66. Sam  |  July 4, 2012 at 1:11 pm

    In the midst of all this, where's Golinski's opening brief before the 9th Circuit? That was also due yesterday.

  • 67. Kathleen  |  July 5, 2012 at 11:46 am

    Sam, they filed it very late at night on the 3rd. It's posted in a quick hit (right column).

  • 68. Prop 8 Trial Tracker &raq&hellip  |  July 4, 2012 at 4:27 pm

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

  • 69. AnonyGrl  |  July 5, 2012 at 7:10 am

    Can I just say I LOVE this place?

    I sometimes go and read NOM's page, just to keep up with what the enemy is up to, and find discussions that make it obvious that no one there has read the Constitituion, nor any of the legal documents or decisions that apply to this issue, and few if any have even read their own bible.

    I then come back here and read threads like this where there is interesting, thoughtful legal debate and reasoned discussion of the implications of the rulings, and I am vastly heartened.


  • 70. Gregory in SLC  |  July 5, 2012 at 8:25 am

    Agree…they seem pretty pointless….

    Lately NOM big effort (aka: waste of time) is to boycott General Mills(yawn…)

  • 71. Kate  |  July 5, 2012 at 7:41 am

    Isn't that the truth! And to think that their votes count the same as ours…………..

  • 72. Kate  |  July 5, 2012 at 7:42 am

    (Supposed to be under Anonygrl's comment………)

  • 73. Bob  |  July 5, 2012 at 9:36 pm

    and that is exactly why Republicans don't value education,,,,,,,,,, they want to keep em dumb,,, and do as their told,,, ,,,,,,,,,,,, another way to control the vote

  • 74. Defense of Marriage Act: &hellip  |  July 6, 2012 at 10:24 am

    […] Via Prop 8 Trial Tracker. […]

  • 75. Prop 8 Trial Tracker &raq&hellip  |  July 6, 2012 at 10:32 am

    […] 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 […]

  • 76. Critical Mass Progress | &hellip  |  August 7, 2012 at 8:20 am

    […] for certiorari, asking them to review the First Circuit’s opinion. Then, on July 3, the Justice Department petitioned the Supreme Court for certiorari; they did so in Gill and in another case, Golinski v. Office of Personnel […]

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