July 3, 2012
By Scottie Thomaston
The Department of Justice is asking the Supreme Court to hear two challenges to the Defense of Marriage Act, in an unexpected move. The announcement comes in the form of a letter to the Ninth Circuit Court of Appeals as part of the DOMA challenge in that circuit, Golinski v. OPM. The Bipartisan Legal Advisory Group (BLAG), who is representing the Republican-led House in defense of DOMA, had filed for a writ of certiorari to the Supreme Court in a different challenge, Gill v. OPM/Massachusetts v. HHS, this past Friday. The letter notes that the Solicitor General has filed petitions for certiorari in both cases.
The letter, via Kathleen in Quick Hits, is here and it includes the cert petition for Golinski:
The Golinski case is scheduled for oral argument at the Ninth Circuit the week of September 10, but the Justice Department is asking to bypass the Ninth Circuit hearing and ruling entirely and head directly to the Supreme Court where they can review issues such as the level of scrutiny and past precedents that may conflict with a ruling striking down DOMA. In the Ninth Circuit, a case called High Tech Gays is settled precedent; it held that gays and lesbians are not a protected class and laws impacting gays and lesbians aren’t entitled to heightened review. This can only be overturned by a Ninth Circuit en banc panel – and the Justice Department originally sought initial en banc review in Golinski but was denied – or by the Supreme Court. So putting the issue squarely before the Justices is a significant step. And in fact, in their certiorari petition, the Justice Department tackles the issue of heightened scrutiny for laws affecting gays and lesbians head on. They write:
The district court concluded that Section 3 cannot survive under heightened scrutiny because the denial of federal benefits to same-sex couples who are legally married under their States’ laws bears no substantial relationship to any important governmental purpose that motivated Section 3’s enactment. App., infra , 36a-44a. Alternatively, the district court concluded that Section 3 would fail even rational basis review because Section 3 is not rationally related to any conceivable legitimate interest of the federal government. Id at 44a-59a. This case 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. For the reasons given in the government’s Massachusetts petition, those questions, and the ultimate question of the constitutionality of Section 3 of DOMA, warrant authoritative resolution by this Court.
They suggest that because the district court ruling addressed the level of scrutiny, it’s time for the Supreme Court to decide that important issue once and for all. The Supreme Court could accept one petition or both in its October conference.
Here is a statement from Lambda Legal staff attorney Tara Borelli:
Press Release from Lambda Legal:
In reaction to the Department of Justice today filing a request that the Supreme Court hear the Golinski v. OPM case challenging the so-called Defense of Marriage Act (DOMA), Lambda Legal issued the following statement from Staff Attorney Tara Borelli:
“This development highlights the desire by all, the government included, to resolve this issue quickly. It is clear to us, to the Solicitor General and to the Department of Justice that DOMA’s days are numbered. The last four courts to consider the question have all found Section 3 of DOMA – which prohibits the federal government from recognizing same-sex couples’ valid marriages– to be unconstitutional . DoJ’s action may speed the day when the Supreme Court reaches the issue. Lambda Legal and Morrison & Foerster stand ready to argue for fair treatment for Karen Golinski and her spouse, Amy Cunninghis, in any court, at any time – and we welcome this opportunity to finally put DOMA out of its, and our, misery.
“There are loving, married same-sex couples, and grieving lesbian and gay widows and widowers around the country who are being hurt by the government’s discriminatory actions – that’s why there are DOMA cases pending in several jurisdictions, brought on behalf of many plaintiffs. Every one of their stories demonstrates that DOMA is an unfair and discriminatory law that violates the Constitution. While it is up to the Supreme Court to decide whether or not to hear Golinski now, we are confident that DOMA will be found unconstitutional – and the sooner, the better.”
The Gill/Massachusetts petition for certiorari by the Justice Department is here: Gill_DOJ Cert Petition