June 21, 2012
By Scottie Thomaston
As Jacob wrote this morning, the Republican-led House, leading the defense of DOMA through the Bipartisan Legal Advisory Group (BLAG) is preparing a petition for certiorari to the Supreme Court asking the Justices to review Massachusetts v. HHS/Gill v. OPM. They have said the petition will be filed by the end of June. The Justices are likely to begin their summer vacation at the end of next week, and they’ll return in October. Sometime in October the Justices will hold a conference to go over petitions for certiorari and decide which ones they will grant for review by all nine Justices. It only takes four votes to grant review, but politics and strategy can often play a role in cert grants. As SCOTUSBlog pointed out yesterday, “These Justices [in an ideologically-divided Court, as opposed to an ideologically similar one] have fewer incentives to work together, are more skeptical of their colleagues’ goals, and therefore are more apprehensive to hear and decide cases.” Justices might not want to ask the full Court to review a case, fearing a result that is contrary to their beliefs in the legal principles in certain cases. And all sides will weigh in on whether the Court should grant review in the case, so the Justices could be swayed by those response briefs.
On the other hand, as Jacob suggested, the Court has a strong incentive to review the challenge because of “the significance of the constitutional issue at hand and the ever-inceasing number of challenges to DOMA being filed across the country[.]” This is an appellate court’s ruling that upholds a district court’s opinion striking down a federal law that directly impacts 1,138 other federal laws. And letting the opinion stand would leave a federal law inoperable in one circuit while it would still apply in the others, at least the few circuits where gay people currently are legally married and thus DOMA applies. It’s hard to imagine that the Supreme Court would not want to review the First Circuit’s opinion.
Another option for the Court would be to hold the petition for certiorari until another DOMA challenge is heard by an appeals court – likely Golinski v. OPM in the Ninth Circuit (that case will be argued in early September), or Windsor v. US in the Second Circuit. The Court could wait to see if there’s a “circuit split” – where one circuit upholds the law and another strikes it down – or it could wait to consolidate one DOMA challenge with others.
If the Court looks at the cert petition in October and grants it, they will then put the case on their calendar and set a briefing and argument schedule. Typically, this means that oral argument will take place within about four months or so. By then all the briefing will be completed and the Justices would have what they need to decide the case. If everything happens on this typical schedule, we should expect a decision on the constitutionality of the Defense of Marriage Act in late June 2013. Traditionally, the Court recesses by July 4, but generally they finish releasing their final decisions during the last week of June. (This year, for example, the decision on health care is expected at the end of next week, on what is widely thought to be the last day of the Term.)
Otherwise, if the Court outright denies review of the case, the First Circuit’s decision stands and DOMA is unconstitutional as applied to plaintiffs and likely in the entire First Circuit jurisdiction. The Supreme Court would have to take up another DOMA challenge for a uniform ruling on the law’s constitutionality.
And if the Court holds the case, we will be waiting for one or more of the other challenges to be decided by an appeals court. Right now, since Golinski is on an expedited schedule and will be argued in September, it seems to be the closest to a decision at the appellate level. But the appeals court won’t have to rule in any specified time frame, so even after the case is fully briefed and argued, it could drag on for quite awhile.
Another case to keep in mind is the challenge to Proposition 8, Perry v. Brown. The Ninth Circuit Court of Appeals decided that it wouldn’t rehear the case with an 11-judge panel, known as an en banc panel, so the next step would either be to attempt what’s called a “super en banc” panel – with all of the Ninth Circuit judges reviewing the case, an unlikely scenario that is rarely if ever used – or to petition for certiorari at the Supreme Court. Andy Pugno, counsel for Protect Marriage, the group defending Proposition 8, says they are petitioning for certiorari, “We will promptly file our appeal to the nation’s highest court and look forward to a positive outcome on behalf of the millions of Californians who believe in traditional marriage[.]”
It is expected that, since the Justices will be on vacation until October, both petitions – DOMA and Prop 8 – will be looked at around the same time, and the Justices could hear one or both cases. There is speculation that if the Supreme Court takes both cases, they could be heard on the same docket, on the same day. Though, it’s still not certain the Court would grant review of Perry, because the Ninth Circuit’s opinion is very specific to California and would likely not have much impact outside of that state.
If the Court hears both cases, opinions in both would be expected in June 2013. If it declines to review Perry following the October conference, the Ninth Circuit’s decision will stand and marriages will resume in California immediately, but the opinion won’t have any national implications, and could only be cited as Ninth Circuit precedent.
For now, we’re waiting to see what happens in Golinski v. OPM, and we’re waiting for the actual filing of the cert petitions and the October conference.