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Justice Department replies to remaining briefs in DOMA challenges awaiting Supreme Court conference

DOMA trials Golinski Pedersen Windsor

By Scottie Thomaston

In Windsor, recall that the Justice Department had noted in a reply brief that it would soon take further action after the Second Circuit held Section 3 of the Defense of Marriage Act unconstitutional in the case. Their initial 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 the Second Circuit’s decision instead of the district court’s.

In its latest reply brief, the Justice Department continues to assert that Windsor is the best case to review. “BLAG finds “mystifying” that the government, which had previously suggested that the state-law status of plaintiff’s foreign marriage was a cause for hesitation, no longer thinks so,” they write, referring to Edith Windsor’s Canadian marriage. But they point out that the Second Circuit addressed the claims that Windsor lacks legal standing and they unanimously rejected them. The Court typically defers to state law judgments if the district court and the appeals court agrees on the judgment, as happened here, and BLAG “has yet to come forward with a single reason why New York’s highest court would reach a different conclusion or why this Court should disturb the consistent state-law interpretation reached by every other court to have decided the issue.”

In terms of the fact that the Justice Department petitioned the Court to review the case ahead of the decision at the Second Circuit, they write that the timing is no impediment. “Notably, BLAG provides no affirmative reason why this Court would lack authority to consider the government’s petition, nor does it contend that the Court is foreclosed from doing so. Rather, BLAG relies on the fact that the government cites only one prior example (i>General Elec., supra) of this procedural circumstance. But that is entirely unsurprising: the situation in which a party files a petition for certiorari before judgment, but the court of appeals issues a judgment before the Court has considered that petition, by nature arises exceedingly infrequently.”

The Justice Department asks the Court to grant the Windsor petition first, suggesting, “[i]n particular, the court of appeals in Massachusetts 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.” The DOJ asks the Court in the event that Windsor is deemed inadequate to grant its petition in Golinski from the Ninth Circuit Court of Appeals, or Pedersen another Second Circuit case.

When the Bipartisan Legal Advisory Group (BLAG) responded to the petitions in Pedersen, it suggested that part of the IRS code might mean that the plaintiffs lack standing (because it could be read to also suggest marriage is between a man a woman, meaning Section 3 of DOMA would not be the only statute injuring them; and no challenge to that particular law was brought.) In its reply the Justice Department points out that only a few out of thirteen plaintiffs are seeking the type of claims that could fall under that statute, so the issue does not affect whether the Court can hear the challenge – as long as some plaintiffs have standing, it can.

As it has suggested before, the Justice Department continues to press that as Executive Branch defendants, judgment was entered against them in the lower court, thus they have standing to appeal. It also continues to press “the principal justification for the government’s petition in this case: to ensure that this Court can timely and definitively resolve Section 3’s constitutionality.” Fighting off claims that it could have petitioned the Court to hear this case years ago, they state that, “the first court of appeals decision holding that Section 3 violated the Fifth Amendment’s guarantee of equal protection was issued on May 31, 2012. That recent development significantly changed the landscape of DOMA litigation, which has continued to advance quickly and has produced similar holdings in every court to have considered the issue since, including the Second Circuit’s decision in Windsor.” And last, the Justice Department writes that changing the briefing schedule in the case would not be complicated, and it points to past instances in which that happened, like Department of Health and Human Services v. Florida, one of the challenges to the Patient Protection and Affordable Care Act.

In its Massachusetts reply brief, addressing the Spending Clause and Tenth Amendment violations alleged by the state of Massachusetts in regards to Section 3 of DOMA, the Justice Department writes that the Court could hear these arguments whether or not it takes up the petition, and that either way, it should reject them.

Interestingly, the Justice Department argues that federally, “who counts as married” is important, at least in a narrow way: “Although domestic relations and the incidents of marriage have fallen largely within the realm of state regulation, “Congress surely has an interest in who counts as married” for purposes of federal benefit programs. Pet. App. 15a. As the court of appeals recognized (id. at 16a), moreover, “section 3 governs only federal programs and funding, and does not share the[] two vices of commandeering or direct command.” But for its violation of equal protection, Section 3 would be a proper exercise of the Congress’s Spending Clause power. See pp. 7-8,
supra.The Commonwealth’s Tenth Amendment claim thus fails.”

In its reply brief in Golinski, the Justice Department reiterates the points it made in the other briefs: (1) it has standing to seek review (2) granting this petition would not complicate the briefing process (3) review is warranted to ensure a timely review of the issues.

These cases, along with the Prop 8 case, are scheduled for the November 30 conference at the Supreme Court, where they could decide whether to take up any of these petitions.

h/t Kathleen, as always, for these filings

DOJ reply in Windsor:12-307 #9

DOJ reply in Pedersen:12-302 #6

DOJ reply in Massachusetts:12-15 #8

DOJ reply in Golinski:12-16 #9


  • 1. Tony  |  November 19, 2012 at 1:33 pm

    Not connected to this post – but nonetheless a handy chart showing the worldwide picture

  • 2. Bob  |  November 19, 2012 at 3:18 pm

    thanks for posting,,,, interesting article!!!!

  • 3. SHOES THROWER  |  November 19, 2012 at 9:27 pm

    The DoJ makes a compelling case for hearing Windsor first. The First Circuit in Masshachusetts had created a novel standards of rational basis scrutiny. But see Clark v. Jeter, 486 U.S. 456 at 461 (1988) (identifying only three levels of scrutiny in equal protection claims. The Supreme Court can easily dispense with Bipartisan Legal Advisory Group v. Gill, reaffirming that there are only three levels of scrutiny, and vacating and remanding to decide which of the three levels of scrutiny apply to DOMA.

  • 4. Davep  |  November 20, 2012 at 8:54 am

    Red Herring. Section 3 of DOMA doesn't even pass rational basis scrutiny. The things that DOMA actually does simply do not support any legitimate States Interest. All of BLAGs arguments about encouraging responsible procreation, supporting the traditional 1man1woman family etc. have been scrutinized by the courts already and shown to be baseless. In case after case after case, simple logic has shown that each argument is either (1) not a valid States Interest, or (2) if it is, DOMA does nothing to support it.

  • 5. SHOES THROWER  |  November 20, 2012 at 8:55 am

    What would happen if the Supreme Court denies cert to Gill, and later reverses the lower court decision in Windsor on the merits (instead of merely vacating and remanding on a technicality)? Would that effectively overrule Massachusetts v. HHS, 682 F.3d 1 (1st Cir. 2008)?

  • 6. nicksternet  |  November 21, 2012 at 8:18 am

    Michael Klarman, a Harvard Law School professor and author of "From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage," speculated:

    How do you get Four Liberal Justices? Elena Kagan must recuse herself from the DOMA cases, as she worked for the US AG Justice Dept, and was privy to these cases. That leaves only 3 Liberal Justices. NOT GOOD!!!!!

  • 7. Drpatrick1  |  November 21, 2012 at 11:55 am

    I believe only the Mass cases had any involvement by Kagan. So she would not have to recuse herself from those other cases at all.

  • 8. Jeff Baily  |  November 21, 2012 at 8:55 am

    I'd really like to see the Massachusetts cases, specifically Commonwealth of Massachusetts v. Health and Human Servies go to the Supreme Court first and unaccompanied. I feel it's the best and most appropriate case regarding LGBT to ever enter a courtroom. This is where DOMA keeps our ashes segregated for eternity. We can't be buried next to each other in Federally funded cemeteries but straights can? That's bull, and DOMA's bullcrap too! Judge Tauro had the best line of questioning within his courtroom challenges to the prosocuters: Does the federal government under DOMA have an interest in "perpetuating heterosexuality in the graveyard."?

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