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DOJ Files Cert Petition with Supreme Court for Review of Golinski Case

The Justice Department files a petition for a writ of certiorari with the Supreme Court, seeking to bypass the circuit court appeal level in the Golinski case.  In its brief, the DOJ submits the following question to the Court: “Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.”

As it did in its request for an initial en banc hearing of the Golinski case before the Ninth Circuit, the Justice Department points to the significance of the High Tech Gays case in its brief, arguing that the precedent set by the case muddles the question of what level of scrutiny to apply to DOMA.  Unlike the Ninth Circuit, the Supreme Court is in no way bound by the High Tech Gays ruling, meaning it could definitively resolve the scrutiny question.  Golinski is an ideal case for Supreme Court review before circuit court review, the DOJ argues, because it “squarely raises important questions about the Constitution’s equal protection guarantee as it applies to a federal statute that draws distinctions among persons who are legally married under their States’ laws on the basis of their sexual orientation.”

The Justice Department’s move is seen by legal observers as unusual, since the Supreme Court rarely takes up cases before they are heard and decided by the circuit courts.  Nevertheless, the DOJ argues, the confusion presented by DOMA must be resolved, since the law “applies to more than 1,000 federal statutes and programs whose administration depends in part on marital status.”

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