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House Republicans oppose grant of Massachusetts’ cross-petition in their DOMA challenge

DOMA trials Gill/Massachusetts Uncategorized

By Scottie Thomaston

In the Gill/Massachusetts case, there are several petitions for certiorari to the Supreme Court. The Bipartisan Legal Advisory Group (BLAG) is the main petitioner. They were the losing party at the First Circuit Court of Appeals, after attempting to defend the law for House Republicans. The Justice Department also filed a petition in the case to ensure the Court will be able to hear it, since the DOJ has argued that BLAG lacks Article III standing to appear in federal court. And finally, the state of Massachusetts filed its own conditional cross-petition. In a response brief filed at the same time as their petition, Massachusetts gave its reasoning for its own petition:

Out of an abundance of caution, the Commonwealth is also filing a conditional cross-petition for a writ of certiorari raising its Tenth Amendment and Spending Clause arguments, in the event the Court determines that such a cross-petition is required in order for this Court to reach those issues. See Conditional Cross-Petition for a Writ of Certiorari (filed July 20, 2012.)

BLAG has filed its response to the Massachusetts conditional cross-petition, suggesting that the Supreme Court deny it. BLAG writes that the conditional cross-petition is “not necessary” and that granting it “will simply complicate the briefing and scheduling of this case on the merits without materially assisting the Court[.]” BLAG also calls the Spending Clause and Tenth Amendment claims raised by Massachusetts “weak.”

Their main argument that the petition is superfluous is that:

Whether or not the Court grants Massachusetts’ conditional cross-petition, Massachusetts is a respondent for purposes of the House’s petition in No. 12-13 (and the Department’s petition in No. 12-15).

The House’s petition essentially is asking the Court to review a decision that was in favor of the state, and so the state itself has the ability to respond to arguments challenging the ruling in its favor. Therefore they suggest there is not a need for any other petition than their own. BLAG says that not only could Massachusetts still raise its Spending Clause and Tenth Amendment arguments as a respondent, but the DOJ is also defending DOMA against those particular arguments (since DOJ believes Section 3 of DOMA is unconstitutional under equal protection principles in the Fifth Amendment.) This, they suggest, could complicate the situation if the petition is accepted.

The filing attacks squarely Massachusetts’ arguments:

Massachusetts’ arguments are novel, meritless and antithetical to our basic constitutional design, which grants the federal and state governments separate sovereignty and makes each superior in its own realm except where the Supremacy Clause gives the federal government the upper hand.

Massachusetts, in its petition, said DOMA is a “sweeping federal incursion” into an area that has traditionally been regulated by states. And in the reply brief that was filed at the same time as the initial petition, Massachusetts pointed out that there was never any federal definition of marriage that precluded recognition of interracial marriage or any other type of marriage that a state deemed legal. They wrote:

BLAG responds that:

The notion that the federal government cannot adopt its own definitions for purposes of its own federal programs, but must adopt for federal-law purposes whatever definitions the states favor, would turn the Supremacy Clause on its head.

And it further argues:

The theory Massachusetts proposes is far more radical than anything ever suggested by this Court: That even when Congress has specifically defined family-relationship terms for purposes of federal law, the Tenth Amendment provides that state law will “reverse preempt” the federal definition.

BLAG also argues against Massachusetts Spending Clause argument, suggesting it is “unprecedented” and pointing out that Massachusetts has said that it relies on equal protection: if Section 3 of DOMA is unconstitutional under equal protection principles, then it also violates the Spending Clause because spending conditions can’t violate any other part of the constitution. BLAG says the fact that the arguments somewhat rely on each other only underscores the uselessness of the conditional cross-petition.

Since BLAG requested and was granted a short extension to file responses (August 31) more of their responses to petitions in this and other DOMA cases will be forthcoming soon.

h/t Kathleen for this filing

12-97 #2


  • 1. Mykelbarber  |  August 29, 2012 at 1:25 pm

    When will the religious bigots just give up and admit they are bigots and that their religious animus has no place in our laws?

  • 2. Gregory in SLC  |  August 29, 2012 at 1:50 pm

    No kidding!

    So glad I was not at RNC last night! List of Haters…I mean "speakers"… read some of the transcripts…boils down to (especially white) men know what is best for women, there is no need for marriage equality…and "we hate immigrants" (even if they "are one")…what a despicable hoard!

    7:00 pm ET hour: House Speaker John Boehner, RNC Chair Reince Priebus, Utah House candidate Mia Love, Rick Santorum, Cathy McMorris Rodgers
    8:00 pm hour: Kelly Ayotte, John Kasich, Mary Fallin, Bob McDonnell, Scott Walker
    9:00 pm hour: Nevada Gov. Brian Sandoval, Texas Senate nominee Ted Cruz, Democrat-turned Republican Artur Davis, and South Carolina Gov. Nikki Haley
    10:00 pm hour: Ann Romney and New Jersey Gov. Chris Christie

  • 3. SoCal_Dave  |  August 29, 2012 at 6:16 pm

    I started reading and got this far…..
    "In the Gill/Massachusetts case, there are several petitions for certiorari to the Supreme Court. The Bipartisan Legal Advisory Group (BLAG) is the main petitioner. They were the losing party….."
    and just had to stop and smile. The losing party. Very apt description. Long may it stay.

  • 4. devon  |  August 30, 2012 at 6:52 am

    An expected Romney election in november will likely cause judicial progress all DOMA lawsuits to grind to a halt, as DOJ arguments are reworked to adhere to the republican position.

  • 5. CHRIS  |  August 30, 2012 at 6:53 am

    The only thing "unprecedented" is a law like DOMA, which for the first time, decided the Federal Government would recognize some state-sanctioned marriages and not others.

  • 6. MightyAcorn  |  August 30, 2012 at 8:20 am

    Ack, sorry Chris, meant to + 1 that but the fat finger got me. I agree, and DOMA has got to be relegated to the Dead Law Of Shame pile where it belongs.

  • 7. Steve  |  August 30, 2012 at 7:34 am

    In reality, federal law already looks to state law depending on the program. For example social security and veteran benefits are already explicitly written so that what counts as a valid marriage is one that is valid in the state of residence.

    IMO that's not how it should be (the federal government should regard any marriage as valid, since people are citizens of the country and not the states), but there is already a great deal of deference by federal authorities when it comes to family law.

  • 8. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 6:33 pm

    […] certiorari to the Supreme Court, until August 31. The responses have been coming in. First, BLAG opposed Massachusetts’ conditional cross-petition in its challenge to Section 3 of DOMA. Then, it opposed Windsor’s petition for […]

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