March 27, 2012
By Jacob Combs
A sincere thank you to Kathleen for bringing news of all of these developments to us via Quick Hits.
Yesterday, the Justice Department filed two briefs with the Ninth Circuit regarding the appeal of Golinski v. OPM. In its first filing, the government petitioned the Ninth Circuit for an “initial hearing en banc,” and requested that the en banc petition as well as the overall appeal be expedited. As you may remember from the Prop 8 trial, an appeal in the Ninth Circuit goes first to a 3-judge panel, and can then proceed to a larger 11-judge en banc panel. In its filing, the Justice Department called DOMA “a constitutional question of exceptional importance and urgency,” and specifically cited the need for a determination on whether classifications based on sexual orientation should be examined under heightened scrutiny or rational basis scrutiny.
I wrote recently about how the district court’s decision in Golinski v. OPM, looking specifically at the significance of Judge Jeffrey White’s determination to strike down DOMA on heightened scrutiny grounds. The Ninth Circuit’s 1990 decision in a case called High Tech Gays ruled that gays and lesbians were not a suspect class (and therefore not deserving of heightened scrutiny). As Judge White noted in his ruling, however, High Tech Gays was based on the Supreme Court’s decision in Bowers v. Hardwick, which was specifically overturned by the 2003 ruling in Lawrence v. Texas. High Tech Gays, then, is based on outdated law, and Judge White noted that the Ninth Circuit can and should make a new determintion on the scrunity question. In its brief, the government argues that a Ninth Circuit panel would have to determine whether High Tech Gays still binds panels in the appellate court, while an en banc court could look at the question of heightened scrutiny anew.
The Justice Department’s position is a big deal, because it recognizes just how important the scrutiny issue is to the determination of DOMA’s constitutionality, and essentially argues for skipping the panel step and going straight to the en banc review that would almost certainly be required for such an important precedential consideration. In addition, the government also filed a separate motion to consolidate and expedite both BLAG and the Justice Department’s appeals, writing that “ongoing litigation creates uncertainty for Ms. Golinski and countless others who are harmed by DOMA, given its extraordinary scope.”
Also yesterday, the First Circuit announced the names of the three judges who will make up the appeals panel for in the companion cases of Gill v. OPM and Massachusetts v. HHS. The three judges are Chief Judge Sandra L. Lynch, Judge Juan R. Torruella and Judge Michael Boudin, who are Clinton, Reagan and George H.W. Bush appointees, respectively, and the most senior active justices in the First Circuit. In terms of pertinent decisions in the judges’ past, Judge Boudin last year upheld the right of transgender prisoners to receive hormone therapy. P8TT will continue to look into the judges’ background for any information as to how they might rule in the Massachusetts cases. The First Circuit will hear arguments in the two DOMA cases in Boston on April 4 beginning at 10 a.m. BLAG and the Justice Department will each receive 20 minutes to speak, while attorneys for Gill and Massachusetts will each receive 10.
One interesting aspect of the First Circuit hearings is the attorneys who will be making the government’s arguments on both sides. In some ways, the face-off will be a meeting of the greats: Paul Clement, a former U.S. Solicitor General who left his previous law firm after it withdrew from defending DOMA, will be representing BLAG in Boston, while the Justice Department will be represented by Stuart Delery, Acting Assistant Attorney General for the Civil Decision. Delery was recently assigned to the case to replace another government attorney, and his appointment is significant because he is both a high-ranking member of the Justice Department and because he is openly gay.
With these developments in the First and Ninth Circuits, we have a lot to look forward to as DOMA continues to be examined and, hopefully, struck down by more appellate courts on its way to its eventual consideration by the U.S. Supreme Court.