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Updated: BLAG files new brief with Supreme Court in light of Windsor DOMA ruling

DOMA trials Pedersen Windsor

By Jacob Combs

Updated at 6:45 pm Eastern to include Pedersen brief

Yesterday, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives, which is defending DOMA in court after the Justice Department decided not to, filed a new brief with the Supreme Court in the case of Windsor v. USA, reaffirming its position that Windsor is not the correct DOMA case for the high court to take up.  BLAG’s new filing comes in the wake of the Second Circuit’s decision in October striking down DOMA as unconstitutional 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 heightened scrutiny argument as opposed to Gill/Massachusetts, a combination of two cases in which the First Circuit struck down DOMA on the more deferential rational basis review.

BLAG’s argument against the Supreme Court taking up Windsor rests on three main points.  The first is the issue of Edie Windsor’s standing to pursue her case in court.  Windsor married her partner of several decades, Thea Spyer, in Canada in 2007.  The couple resided in New York, where Spyer died in 2009.  BLAG argued before the lower courts which considered Windsor that the fact that Windsor and Spyer’s marriage was granted by Canada and not New York meant that there was a question as to whether they should be considered married under New York state law at the time of Spyer’s death.  If the couple were found to be considered unmarried, of course, there would be no constitutional claim against DOMA.  At the Second Circuit, BLAG urged the 3-judge panel reviewing the case to ask a New York state court (the official term is ‘certify’ a question) to clarify state law on the matter.

In the Second Circuit’s ruling, the panel unanimously disagreed with BLAG’s contention, writing, “we predict that New York, which did not permit same-sex marriage to be licensed until 2011, would nevertheless have recognized Windsor and Thea Clara Spyer as married at the time of Spyer’s death in 2009, so that Windsor was a surviving spouse under New York law.”  The panel based this decision on its authority to ‘predict’ state law when “faced with a question of New York law that is decisive but unsettled,” noting that although the New York Court of Appeals (the state’s highest court) had not expressly issued a ruling on the issue (expressing instead its desire that the legislature settle the matter), three of New York’s four intermediate appellate courts (including Windsor’s home department) had ruled that out-of-state marriages between same-sex couples were valid.

Secondly, BLAG argues in its new brief that Windsor presents unnecessary complications regarding the appellate standings of the various parties to the case.  Essentially, BLAG makes the claim that, because the federal government achieved the court ruling it wanted in Windsor (that is, an invalidation of DOMA), it does not have standing to appeal the case any further in the federal courts.  The Second Circuit rejected this argument, but BLAG’s brief asks the Supreme Court to consider the matter anew.  Finally, BLAG asserts that because the Windsor case was appealed to the Supreme Court for review before it was decided by a circuit court, accepting the case “would require procedural machinations that this Court has not employed for over thirty-five years.”

Although BLAG writes in its brief that the Second Circuit’s decision “confirms beyond all doubt that this Court should review DOMA’s constitutionality,” it argues that Windsor does not present the proper vehicle for such a review.  BLAG instead urges the Supreme Court to consider the Gill/Massachusetts decision as the correct one to take up, since it was decided in the normal order of district court, circuit court, request for Supreme Court review, or, should the Court decline to take up Gill/Massachusetts, BLAG urges it to consider the Golinski case instead, which, BLAG argues, presents no question as to the plaintiff’s standing.

To be completely honest, it’s unclear what BLAG’s strategy is right now concerning DOMA at the Supreme Court.  BLAG has already made the argument concerning the appellate standing of the federal government in previous briefs, and its argument against Windsor’s standing seems unlikely to find much traction at the high court, since it has been rejected by every judge to consider the claim so far.

The truth (to my eye at least) is that all four of the DOMA cases currently before the Supreme Court present virtually identical matters for the Court to consider.  Regardless of which case the Supremes choose as the nominal case to be reviewed, the issues before the court will be: 1) should laws that classify based on sexual orientation be subject to rational basis or heightened review and 2) under the correct standard of review, does DOMA violate married same-sex couples’ constitutional rights.  The Supreme Court will have several lower court opinions and two circuit court opinions to use in its consideration of DOMA (and it is virtually certain that regardless of which case gets taken up, lawyers for the other cases will file amicus briefs with the Supremes), but in the end, the high court’s review will be its own and will be made essentially from scratch.

There is one other possibility to consider.  In July, I wrote about an argument floated by Georgetown law professor Nan Hunter that made the case that Justice Kagan would likely have to recuse herself from any decision in the Gill/Massachusetts case given her time as Solicitor General of the United States.  Hunter argued that the Justice Department’s petition for Supreme Court review before a circuit court ruling in Golinski was an attempt to circumvent that recusal, since a divided 4-4 Supreme Court ruling would have no precedential effect and would necessitate a second case to come before the high court to settle the matter of DOMA’s constitutionality once and for all.  Windsor was filed after Kagan joined the Supreme Court, so it would also require no recusal on her part.

For that reason, there is a slim chance that BLAG is seeking to have the court consider Gill/Massachusetts in order to remove Justice Kagan from the eventual decision.  (It seems likely that she would vote to strike DOMA down.)  This supposition is tenuous at best, however, precisely because of the fact that it is so important for the Supreme Court to make a final determination on DOMA’s constitutionality.  With three other cases before it that do not require Justice Kagan’s recusal, it seems unlikely the Court would take up Gill/Massachusetts were that the case.  Nonetheless, it is something to keep in mind.

On that note, Hunter wrote another piece this week in which she predicted that the Court would follow the Justice Department’s suggestion and grant review in the Windsor case only.  The other three DOMA cases would technically be put on hold (although of course the Windsor decision would apply to all of them), and Hunter also argues that both the Prop 8 case and Arizona domestic partnership case (Diaz) would also be placed in what she calls “deep freeze.”  The court would decide the scrutiny issue in the Windsor case and then remand the Prop 8 and Arizona cases to the Ninth Circuit for further consideration in light of the Windsor decision.

That seems like a pretty good guess to me.  I’ve written before about my opinion that the Court should refuse to hear the Prop 8 case, and I still think there’s a chance that they’ll do that before the DOMA cases are decided.  Nevertheless, Hunter is completely correct in pointing out the significance that a DOMA decision (and specifically, a Supreme Court ruling on scrutiny) will have for all other LGBT rights cases.  It’s difficult to overstate how big a deal a heightened scrutiny decision would be, since it would fundamentally change the legal calculus for other laws like Prop 8.

All of the above-mentioned cases (DOMA, Prop 8 and Diaz) are currently scheduled for review at the Court’s November 20 conference.  Decisions from the conference will be announced on Monday, November 26, although there’s no guarantee we’ll hear anything on that date.  Still, we’re getting closer and closer to some very big news.

You can read BLAG’s full brief below.

[scribd id=111830352 key=key-do6fdg9wnn9psbyfmv9 mode=scroll]

Update (6:45 pm Eastern): Via Kathleen, below is a brief filed by the plaintiffs in the Pedersen case that responds to similar claims made by BLAG against taking up that case to the ones BLAG made in its Windsor brief.  In short, the Pedersen plaintiffs argue that BLAG is incorrect in asserting that the Internal Revenue Code raises a problem in their case (BLAG had made the claim that one section of the IRC which reads that a “husband” and “wife” can file joint tax returns precludes same-sex couples from doing so regardless of DOMA) and that it is wrong to say the Pedersen plaintiffs cannot appeal their case to the Supreme Court since they prevailed at the district court level.  The Pedersen case, they argue, “presents an ideal vehicle” for the Court to consider DOMA.

[scribd id=111953291 key=key-dl6hfk6t5xnyc1mdnvg mode=scroll]


  • 1. Leo  |  November 2, 2012 at 9:02 am

    [T]he House […] has not petitioned for certiorari in Windsor and does not join either Petition. […]The Petitions in [Windsor] should be denied.

    Let's suppose for a second BLAG gets its way. Doesn't that mean the Windsor decision, having been denied cert, will become final, long before SCOTUS decides Gill/Massachusetts? Or would BLAG go back to 2nd Circuit and ask for a stay pending Gill?

  • 2. W. Kevin Vicklund  |  November 2, 2012 at 9:30 am

    What would probably happen is that Windsor would be held, rather than denied cert, until a decision in the other DOMA case(s) was reached, then remanded with instructions to consider the new decision.

  • 3. davep  |  November 2, 2012 at 10:33 am

    Regarding the two points enumerated in the seventh paragraph, it seems to me that there is also a third question to be answered. In addition to the questions of which level of scrutiny ought to apply to laws that single out gay people, and does DOMA violate the rights of same sex couples, there is also the broad question of whether DOMA oversteps the principles of federalism and state's rights by preventing states from effectively administering their own civil laws fairly for the citizens of their state.

  • 4. Jacob Combs  |  November 2, 2012 at 12:46 pm

    Dave–that's a good point, and one that seems pretty important to me, but one that the courts have really avoided taking up. Only Judge Tauro in Massachusetts ruled that DOMA should be struck down specifically because of federalism. The other district courts (and the two circuit courts) have not gone that far, instead considering federalism in light of the scrutiny level but not as its own reason for striking DOMA down. That's what I left that out here.

  • 5. davep  |  November 2, 2012 at 1:19 pm

    Interesting! I didn't realize that this question was getting less attention by the courts than the other questions. I wish that were not the case, because on THIS issue, it seems to me that there could be quite a bit of support for us from sources that don't traditionally support marriage equality – like all of the fiscal conservative / small federal government forces who I would think would be opposed to the federal government dictating law & policy in matters that they feel ought to be left up to the states, regardless of what the specific issue is.

  • 6. Steve  |  November 2, 2012 at 1:48 pm

    Tauro dealt specifically with the federalism question because the US government was actually sued by the state of MA itself. The other suits were started by private people.

  • 7. Mike in Baltimore  |  November 2, 2012 at 6:07 pm

    "In February 2008, the Appellate Division, Fourth Department ruled that a same-sex marriage consummated in Canada should be recognized in New York."

    It would appear that the courts had spoken many months prior to Ms. Spyer's death. And in the court's view, legal marriages in another jurisdiction were legal in New York state. It looks like B (actually mono-partisan) LAG doesn't have much to stand on in that part of the dispute.

  • 8. Con  |  November 2, 2012 at 8:35 pm

    $1.5 million apparently doesn't buy much of a legal argument these days…

  • 9. davep  |  November 2, 2012 at 9:06 pm

    Yeah, although it really wouldn't matter how much money they spent. There has never been a valid legal argument for DOMA.

  • 10. Lymis  |  November 3, 2012 at 4:32 am

    I'll be interested in seeing the final bill, because I've heard they blew through what was actually approved a while back. Hopefully, they'll just take it out of Boehner's paycheck.

  • 11. Steve  |  November 3, 2012 at 11:25 am

    Clement was able to charge money more than half a dozen times for the same poorly thought out arguments. Suing them so many times in different locations probably put more strain on their budget than they anticipated.

  • 12. Stefan  |  November 3, 2012 at 1:21 am

    I still don't see why the Supreme Court would remand Perry and Diaz back to the 9th Circuit if they take Windsor. A ruling in Windsor would affect only future LGBT rights cases. Perry and Diaz have already been decided, and there is significant reason for them not to hear them both, which I still strongly believe is what will happen.

  • 13. Stefan  |  November 3, 2012 at 2:09 am

    I would just like to add the court must be aware of the two same sex marriage cases that are headed there way from Hawaii and Nevada. Those could be used for the heightened scruntity test.

  • 14. Lymis  |  November 3, 2012 at 4:35 am

    Wouldn't a remand only matter if either the SCOTUS declared that heightened scrutiny applies and a lower court decided against gay rights using standard scrutiny, or if SCOTUS declares that only rational basis applies and a lower court decided based on heightened scrutiny?

    Aren't most of the current cases decided on "if heightened scrutiny were to apply, this would be obvious, but we don't need to go there because it doesn't even pass rational basis?"

  • 15. Stefan  |  November 3, 2012 at 7:47 am

    Yah that makes sense.

  • 16. Linda  |  November 3, 2012 at 10:07 am

    I don't think a remand of Perry would be necessary. The state supreme court already stated that Prop 8 only stands if it doesn't affect actual rights. If DOMA is eliminated we suddenly have a different situation in California where there would be four sets of people: 1. Straight couples that are married, and get all the legal rights associated with it. 2: gay couples that were married prior to 2008, and get all the rights associated with it (including federal rights). 3. Gay couples that are "domestic partnered" and get only state rights and are denied federal rights. 4. Gay couples married in other jurisdictions following prop 8, that are considered "those that shall not be named" by our laws and are denied federal marriage rights.

    I don't even know if the supreme court would hear the case, as they already addressed the issue.

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