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Justice Department urges Supreme Court to grant Edith Windsor’s DOMA case after Second Circuit ruling

DOMA trials Windsor

By Scottie Thomaston

As anticipated after the Second Circuit’s ruling in Windsor v. USA striking down Section 3 of the Defense of Marriage Act as unconstitutional and applying a heightened form of judicial scrutiny to laws that classify on the basis of sexual orientation (along with defining gays and lesbians as a “quasi-suspect class” which allows laws that discriminate against them to be regarded suspiciously), the Justice Department has filed a supplemental brief in the Windsor case at the Supreme Court, telling the Court that the Second Circuit’s decision is the most appropriate one for review.

The Justice Department points out that the Court has the authority to review the Second Circuit’s decision just as it does their petition before judgment at the appeals court that they had previously filed. They write, “[a]lthough the government’s petition in this case was filed as one for certiorari before judgment, the issuance of the court of appeals’ intervening decision does not deprive the Court of the authority to grant it.” They contend that, “[i]f granted, the writ of certiorari would still be directed to the court of appeals, and this Court could still exercise jurisdiction pursuant to 28 U.S.C. 1254(1) (“Cases in thecourts of appeals may be reviewed by the Supreme Court by writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree.”). This Court’s rules do not establish any additional requirements, other than inclusion of the court of appeals’ opinion (attached as an Appendix to this brief), for a petition for a writ of certiorari after judgment.”

In its petition for certiorari before judgment, the Justice Department had asked the Court to hold onto their petition and grant it in the event no other case challenging Section 3 of DOMA is seen as an appropriate vehicle. In this filing, the Justice Department suggests a different course, writing, “Although the government initially recommended that its petition be held pending the consideration of petitions in other cases raising the same issue, the court of appeals’ decision materially strengthens this case as a vehicle for resolving the constitutionality of Section 3 of DOMA.”

The Justice Department suggests that the discussion of the level of scrutiny to be applied to laws that classify on the basis of sexual orientation (for a more detailed explanation of the concept of heightened judicial scrutiny see here) in the Second Circuit would benefit the Court’s analysis. They point out that the pending petition in the Gill case asks the Court to review a decision by the First Circuit, which had to contend with binding precedent. The Second Circuit has no precedent deciding the level of judicial scrutiny that should be applied in these cases, therefore they could fully analyze the question. The Department writes this is particularly important, “In particular, the court of appeals in Massachusetts [Gill] was constrained by binding circuit precedent as to the applicable level of scrutiny, No. 12-15 Pet. App. 10a, whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.”

They write that in the event the Court decides to deny the Windsor petition, it should grant the petition for certiorari before judgment in Golinski, another case where a lower court applied a heightened level of judicial scrutiny.

h/t Kathleen for this filing

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  • 1. Str8Grandmother  |  October 26, 2012 at 12:28 pm

    Thank you Obama for directing the Justice Department to defend the Civil Rights of Sexual Minorities.

    I have come to the conclusion that the Supreme Court is not going to say a peep either way until after the election. The wheels of Justice turn s-l-o-w.

  • 2. RepublicanLutz  |  October 26, 2012 at 8:34 pm

    Yeah, given how divided the country currently is over this issue, it makes sense that the election might be playing a role in the delay.

    If you're a Democratic justice, you worry about motivating social conservatives.
    If you're a Republican justice, you worry about shifting the focus of the election away from the economy.

    And then there's the desire to see the Court avoid being used by both sides in campaign ads that do little more than make discussion of the mighty institution a debate over "activist" judges.

    Heck, if I were a justice, I'd probably wait a few weeks to grant or deny cert too.

  • 3. RepublicanLutz  |  October 26, 2012 at 8:50 pm

    Note: My comment concerning a possible political role in the delay really only applies to the Prop 8 case. The DOMA cases quite obviously have good reason not to be granted yet.

  • 4. SHOES THROWER  |  October 27, 2012 at 9:38 pm

    Agreed. a sweift resolution is needed both for the population at large as well as state and federal judiciaries.

  • 5. Fr. Bill  |  October 26, 2012 at 12:31 pm

    I think the Windsor case would be a good one. The plaintiff is getting older, the level of scrutiny is an issue that needs to be resolved and it involves three subjects near and dear to conservative hearts: property rights, taxes and money.

  • 6. Scottie Thomaston  |  October 26, 2012 at 12:34 pm

    Purely from a media standpoint the Windsor case would be amazing. Her story is very compelling and the way the government has treated her seems so much more unfair because of her age and her 40+ year relationship, then the death of her wife. (Not to mention BLAG's argument in district court that her orientation is a "choice".) I think if we're looking to win hearts and minds it's a good case for the American people to be more aware of .

  • 7. Bob  |  October 26, 2012 at 12:47 pm

    Hi from Canada,,, still can't believe how close the election is,,,,,,?????? the risk of fundamental right wing taking over is just astounding,,,

    buying my lotto ticket today,,, talking to the line up and clerks,,, I said,, it's my turn for a win on the lotto but I'd forgo for a win for Obama,,, to which I received a rousing response,, and the woman clerk said she is an American citizen,, to which I said,, but did you VOTE!!! to which she replied you bet I did,,, round of applause,,, for absentee ballots cast from CANADA

  • 8. Matt N  |  October 26, 2012 at 3:02 pm

    Curious what happens if Romney wins. Can he file new opposing briefs with SCOTUS after Jan 20, or what could happen?

  • 9. devon  |  October 27, 2012 at 5:53 am

    With Romney looking increasingly likely to be elected, I'm surprised that the media isn't giving much attention to that looming disaster for supporters of marriage equality.
    Romney essentially shares Santorum's position that existing same sex marriages should be dissolved.

  • 10. Larry  |  October 27, 2012 at 8:21 am

    I'm fond of Nate Silver (originally at, now at the New York Times He uses fairly sophisticated statistics to interpret the huge number of polls, as opposed to the media which seems to latch onto polls randomly. According to him, Obama has about a 75% chance of winning, mainly based on Obama is doing pretty well in super-swing state Ohio..

  • 11. exx-man  |  October 27, 2012 at 11:48 am

    I read an article about Las Vegas odds makers and how they have correctly picked the winners in 15 of the last 16 presidential elections. They still have Obama winning with a comfortable margin. Barack Obama will win his bid for re-election.

  • 12. Tyler  |  October 26, 2012 at 3:28 pm

    Initially, I thought that an entirely new petition would have to be filed from this new appellate court decision. However, as the government's brief helpfully explained, the petition for certiorari before judgment is technically the same thing as a petition for certiorari after judgment: they're both petitions addressed to the court of appeals, and both are authorized by 28 U.S.C. § 1254(1). And apparently this has previously happened once before. So it seems that there will be minimal, if any delay.

    That said, if the Supreme Court grants this case, the Obama Administration will get to file its brief regardless who wins the election. But I suspect if Romney wins they will delay the case to allow the new administration to file a new brief. Also, in the unlikely event that Democrats retake the House, there will be no one to defend DOMA, and the Court will probably have to appoint an amicus curiae to do the job. All very interesting.

  • 13. Kim  |  October 27, 2012 at 5:10 am

    The contact info at the side is malformed, so I cannot contact you guys with some really interesting legal stuff that is working its way though the legal system. The case is not yet on the radar, but is a catch-22 in which the federal government has to choose between either honoring state marriage laws and grant marriage rights to some same sex couples and generate two classes of same-sex marriages which means that some same-sex marriages are treated different from other same-sex marruages, OR they have to run over the states and dictate how the states have to determine who is a same-sex couple and who is not.

  • 14. Str8Grandmother  |  October 27, 2012 at 5:42 am

    I am interested in this. Can you provide more details?

  • 15. Kim  |  October 27, 2012 at 10:23 am

    Texas consider a male-to-female transsexual a male, and therefore can have a heterosexual marriage. The federal government has to accept the designation of the state for purpose of taxes, and also immigration (this plays currently out at the Board of Immigration Appeals), despite that the couple in all other ways is a same-sex couple. The flip side occurs when a male-to-female transsexual marries a woman in a state that does not have the backward idea of Texas, like New York, where they will enjoy a same-sex marriage. At this moment, the federal government is going to treat two couples fundamentally different solely based on the location they got married because the ONLY thing separation the two couples is how the state defined arbitrarily who is a man and who is a woman.

    The concrete case consist of a couple in which the husband is a post-op male-to-female transsexual who came to the US after she had transitioned years before. She married a US woman in Texas, and has a heterosexual marriage. They have never hid that they are a same-sex couple in all other ways, including gender markers etc. The green card petition was denied invoking DOMA, despite that the 9th circuit and the BIA have determined that the states determine whether the marriage is a heterosexual marriage or not. In this case, the immigration officer invoked DOMA in order to impose a federal definition of what constitutes a heterosexual marriage (what gender markers are you using). If that is allowed to stand, it effectively puts the federal government at loggerheads with some of the states and their jurisprudence (Texas, Florida, some other backward Southern states), and if it follows the states designations, it allows a single group of people who for all purposes are equal except for the location where they enjoyed their marriage to be treated differently.

  • 16. Prop 8 Trial Tracker &raq&hellip  |  November 2, 2012 at 8:03 am

    […] under the heightened scrutiny standard of review and the Justice Department’s filing last week arguing that the Supreme Court should review Windsor specifically because of its […]

  • 17. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 6:45 pm

    […] Supreme Court, asking them to review her case, and it comes after the Justice Department’s own supplemental brief. Windsor asks the Court to grant USA v. Windsor, via the Justice Department’s petition in the […]

  • 18. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 2:16 pm

    […] petition for certiorari was filed before judgment at the court of appeals so the Justice Department filed a supplemental brief asserting that Windsor is now the most appropriate vehicle to review challenges to Section 3 of DOMA, and the Court should review […]

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