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Plaintiffs in Gill v. Office of Personnel Management, challenging Section 3 of DOMA, ask Supreme Court to review the case

DOMA trials Gill/Massachusetts

By Scottie Thomaston

Gay and Lesbian Advocates and Defenders (GLAD) who is representing the plaintiffs in Gill v. Office of Personnel Management challenging Section 3 of the Defense of Marriage Act has filed a brief in response to the petitions for certiorari to the Supreme Court filed by the Bipartisan Legal Advisory Group (BLAG), who is defending the law on behalf of House Republicans, and by the Justice Department, who is fighting DOMA in court. Their brief asks the Supreme Court to hear their challenge.

Since BLAG and the Justice Department have both asked the Court to take up the challenge, the filing of this brief with the Court means all three parties now support Supreme Court review. The brief describes DOMA as “a class-based enactment, […] a federal declaration that the Respondents’ marriages are not “real marriages” and merit no respect under any federal law.”

They argue that there is “no dispute” that the legal issues raised in this case are of national importance, pointing to the fact that BLAG and the Justice Department want Supreme Court review of the case. They write, “The Court should not be swayed by the arguments on the merits that BLAG chose to present in its petition… [A]s multiple courts have recently recognized, there are compelling arguments that Congress violated the equal protection guarantee when it decided for the first time to deny all recognition to a single class of state-sanctioned marriages.”

In its opinion striking down Section 3 of DOMA, the First Circuit used the more lenient rational basis test to analyze the constitutionality of the law. In doing so, they considered cases like Romer v. Evans and Dept of Agriculture v. Moreno in which the Supreme Court struck down laws using rational basis review while paying attention specifically to the fact that the laws were based on “animus” against a specific group (gays and lesbians in Romer, hippies in Moreno.) BLAG contended in its petition for certiorari that this approach is “novel” and “unique” among other things. The Gil plaintiffs respond to this point, writing, “While BLAG objects, Moreno, Cleburne, and Romer do in fact illustrate that where unpopular groups or historically disadvantaged minorities are concerned, the Court has, in fact, been careful to scrutinize claims of “fit” between a policy and its stated objectives (Moreno); found alleged legislative interests unconvincing (Cleburne); and not hesitated to find a lack of a relationship between a status based enactment and legitimate interests (Romer). Regardless of its word choice – e.g., “intensified scrutiny,” “greater rigor,” or “closer examination,” DOJ. App. 11a, 13a, 15a – the First Circuit accurately captured the nuances of rational basis review as requiring an examination of whether a law’s justifications are simply pretexts.”

Regarding the level of scrutiny the Supreme Court should apply to laws impacting gays and lesbians, plaintiffs write, “rational basis analysis the First Circuit actually applied to consider and ultimately reject each of the proffered government interests for DOMA further belies BLAG’s assertion that it invented some “new” form of review.” However, although they accept the rational basis review applied by the First Circuit, plaintiffs ask the Court to apply a heightened form of judicial scrutiny. They suggest, “If the Court grants review, it should also consider whether heightened scrutiny applies to laws that discriminate based on sexual orientation” because “this Court’s silence on the standard of review has allowed many lower courts to continue to apply outdated Circuit precedent that sexual orientation discrimination is subject to only rational basis review, thus leaving gay men and lesbians vulnerable to intentional discrimination.” As the Justice Department has already pointed out, gays and lesbians fit the qualifications to receive heightened scrutiny.

The Court will decide whether it will hear Gill v. OPM in early October.


  • 1. Roque Neto  |  August 2, 2012 at 2:28 pm

    Can't wait for that day.

  • 2. Bob  |  August 2, 2012 at 3:53 pm

    bring it on!!!!!!!!!!

  • 3. Ronald Cusneros  |  August 2, 2012 at 4:12 pm

    Onward to full equality.

  • 4. Eric  |  August 2, 2012 at 4:56 pm

    It's open enrollment time at work, and it got me thinking about DOMA.

    If SCOTUS finds DOMA unconstitutional, would that be considered a qualified Life Status Change, even though I already have a valid California marriage, for Section 125, Section 129, and Flexible Spending Account plans?

  • 5. reformed  |  August 2, 2012 at 7:16 pm

    chick fil a deserves a concerted response from the glbt / alies / marriage equality community. this isn't about free speach. its about supporting a business who donates you dollars to anti gay organizations.

    personally i think things will take care of themselves. anti gays can't live on chicken alone. and their reputation cannot survive when giving a chick fil a gift card would be seen in poor taste.

    but what? and how? gum up the works, in person sustained protest. phone bank their business and wear them out? order a soda and take up lots of lunchtime parking and seating? they opperate a public establishment. i think the are counting on becoming a anti gay convention center free of of gay visability. what? how? chick fil a needs to lie in the bed they have made. they cannot be allowed to become an example of anti gay pays.

  • 6. davep  |  August 2, 2012 at 8:12 pm

    For starters, we ALL need to speak up and correct the record about this issue. The protests against their company are NOT about free speech. Their CEO can believe what he wants and he can say spew stupid rhetoric if he chooses to. The issue is – THEY DONATE MILLIONS OF DOLLARS TO EXTREMIST HATE GROUPS like the FRC and Exodus, and have even spent large sums of money lobbying congress to NOT oppose the notorious Ugandan "Kill the Gays" bill. It's not what their CEO says or thinks, it is the REAL HARM they are doing by funding extreme bigotry.

    When you hear anyone talking about this 'free speech' issue, CORRECT THEM. And that certainly includes correcting the media for the crap job they are doing by not reporting the real story behind this.

  • 7. Reformed  |  August 2, 2012 at 11:35 pm

    ok, will start emailing media contacts in the morning.

  • 8. AnonyGrl  |  August 3, 2012 at 7:39 am

    Davep has the right of it. I've been reposting that info in every thread I see that has "Let's hear it for CFA's free speech!" on Facebook and other places. I make it a point to say that the Cathy family can say and believe ANYTHING THEY LIKE in the privacy of their own homes, churches, and on street corner soapboxes. I do not care. I DO care when they donate those millions, as should everyone else.

    Someone in one of those threads asked "where were all the so called tolerant liberals 6 months ago when Obama believed the same thing Cathy did?" I pointed out that President Obama never believed as Cathy does, and certainly never donated to hate groups. I also pointed out many of us were lobbying for him to continue to evolve for a very long time, and that the poster was simply and sadly unaware of it until Sarah Palin got involved in the CFA business. And I pointed out that President Obama has evolved, and is now on the side of marriage equality and civil rights.

  • 9. Reformed  |  August 2, 2012 at 11:40 pm

    We need a website for chick fil a employees to post to anonomyously. i have seen these types of websites for fundamentalist colleges where gay alumni and students can speak out. I think the employees probably have a lot to say.

    Also, need to get the idea into the public discourse that chick fil a gift cards are in poor taste.

  • 10. wes228  |  August 3, 2012 at 7:44 am

    I would think a gift card to a fast food restaurant would be in poor taste no matter where they donated their money…I mean, who buys someone a McDonald's gift card?? Maybe for their trailer-warming party?

  • 11. AnonyGrl  |  August 3, 2012 at 7:56 am

    Those gift cards can be returned in some states for at least a partial refund. Let's make sure people know that too. Then donate that money to a marriage equality cause. If they can't be, rather than toss them out if people INSIST on giving them, we could donate them to homeless shelters that specifically reach out to LGBT youth or other such organizations that can put them to good use. Either way, send a note to the person who gave it t to you and to the Cathy family and let them know that you are putting their donation to good use.

  • 12. Mike K  |  August 3, 2012 at 7:50 am

    The Extreme Bigots have been very clever in framing the discussion into:
    – Freedom of Speech
    – Freedom of Religion
    Which are basic tenets of the American Logic.

    We have done a poor job at framing the discussion into one of discrimination, which is another of our Country's basic tenets.

    No public corporation can discriminate, irregardless of the opinions of their CEO.
    A company that establishes an office in any of the States in which Same-Sex Marriage is allowed, MUST give the same benefits to ALL married couples, irregardless of their gender composition.

  • 13. AnonyGrl  |  August 3, 2012 at 8:30 am

    I don't think that CFA has violated the last paragraph. Or if they have, there has not been much of a stink raised about it, or they have corrected themselves quickly.

    In this case, the discrimination is entirely being handed out by the organizations that the Cathy family FUNDS with the profits from their business. While they have the right to do so, we have the right to point out what those organizations stand for and do. THAT is what we need to keep doing. Talk about Exodus International. Explain that they have been denounced not only by all the major medical and psychiatric assosciations but also by many of their own former leaders as dangerously harmful and completely ineffective at the "pray away the gay" therapy they push. Point out Focus on the Family and other organizations that have lobbied Congress NOT to speak up against Uganda's "kill the gays" bill. That have actively fought against anti-gay bullying measures designed to prevent children from feeling the need to commit suicide, and so on.

  • 14. davep  |  August 3, 2012 at 9:27 am

    And another "follow the money" connection – Not only did Chick-Fil-a lobby to impede progress on congress passing a bill to denounce the Ugandan "Kill the Gays" bill, but one of the three extremists who went to Uganda to start the whole hateful thing was Don Schmeier, a member of the Board of Directors for Exodus. And since Chick-Fil-a donates to Exodus through their "WinShape" cover organization, they effectively helped pay for that Ugandan bill to be created in the first place.

  • 15. AnonyGrl  |  August 3, 2012 at 12:46 pm

    Excellent information to know… thanks!

  • 16. Critical Mass Progress | &hellip  |  August 7, 2012 at 8:22 am

    […] brief to the petitions for certiorari and then filed its own petition; GLAD (the Gill plaintiffs) filed a reply brief agreeing that the Supreme Court should review the case and affirm the judgment. The Court will decide to […]

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