Leave a Comment Sagesse
DOMA heading to the Supreme Court: An interview with Lambda Legal’s Jon Davidson
July 5, 2012
By Scottie Thomaston
With the Justice Department’s decision to petition the Supreme Court for certiorari in two challenges to Section 3 of the Defense of Marriage Act, Golinski v. Office of Personnel Management and Gill v. Office of Personnel Management/Massachusetts v. Department of Health and Human Services, there has been some confusion and many questions about what it all means and what the next steps and strategy will be. The Prop 8 Trial Tracker team spoke with Jon Davidson, Lambda Legal‘s national Legal Director and one of the counsel in the Golinski case. Below he attempts to clear up the confusion and explain the rest of this process.
–
1. Are there precedents for any party to seek review from the Supreme Court before the appeals court even hears oral argument in the case?
Yes. The Department of Justice cites a number of cases in its petition to the Supreme Court where this has been done. Of recent cases, perhaps the most famous is Gratz v. Bollinger, which considered the constitutionality of race-conscious undergraduate admissions programs, and in which the Supreme Court accepted and decided a case prior to oral argument at the federal court of appeals because the case presented a broader question that the Court felt would be helpful to address rather than just reviewing a question that was narrower. Federal statutory provisions expressly allow any party to a case pending before a court of appeals to ask the Supreme Court to grant review before oral argument or decision by the intermediate appellate court.
2. The arguments over the level of scrutiny that laws affecting gays and lesbians should be subjected to seemed to play a big role in the certiorari petition in Golinski. (2a) Do you think that will have an effect on whether or not the Supreme Court takes the case? (2b) And do you think that, since it’s the Justice Department placing the issue in front of the Court while at the same time pushing in favor of heightened scrutiny, the Court is more likely to take that particular argument seriously?
In general, the Supreme Court does consider carefully any arguments made by the Department of Justice. The Supreme Court is likely to consider a number of factors in deciding whether or not to grant the certiorari petition, and one certainly will be whether they would find it more helpful to review a case that carefully analyzed the considerations for deciding whether heightened judicial scrutiny should apply to government discrimination based on sexual orientation (which Judge White did in the Golinski case brought by Lambda Legal and Morrison & Foerster, finding that heightend scrutiny should apply, but that Section 3 of DOMA fails even a lower standard of judicial review) in addition to or instead of the Gill case brought by Gay & Lesbian Advocates & Defenders and the companion case brought by the Commonwealth of Massachusetts, where the appellate court felt bound by its prior case law on these issues.
3. Would the Supreme Court consolidate these two cases if they decide to take both of them at this time? And how likely is it that they would even take Golinski in its current disposition?
If the Supreme Court decides to grant review in both cases, they are unlikey to be “consolidated,” but they might be heard at the same time. It is up to the Supreme Court to decide whether to accept the Golinski case for review prior to decision by the Ninth Circuit and we do not want to speculate at present about whether that will occur or not.
4. Since both cases are based on the same legal issue (are the issues identical or will they run on parallel tracks?), do you think the fact that one of them is already at the certiorari stage, having been decided at the First Circuit, will sway the Court to just go ahead and deal with both now?
There are certainly many common issues raised by the two cases but there are some different arguments made by the plaintiffs in each (although none in conflict with one another). The courts in both cases found that Section 3 of DOMA discriminates based on sexual orientation in violation of the equal protection guarantee of the Fifth Amendment (the cognate of the Fourteenth Amendment’s equal protection clause applicable to the federal government), but they did so based on somewhat different reasoning. While people may hazard guesses about what might sway the Court or what it might do, we again do not think it is productive for us to speculate on those issues at present.
5. What decisions do you think the Supreme Court may have to overrule in order to (1) overturn DOMA, and (2) apply heightened scrutiny? Baker v. Nelson comes up frequently in discussions, as well as High Tech Gays and Cook v. Gates. Is it significant that there are seemingly so many precedents at issue here, according to defenders of the law?
There are no Supreme Court cases the Court would need to overrule to overturn DOMA or to apply heightened scrutiny. The Court has never considered the constituitonality of DOMA and has never actually decided the level of scrutiny to apply to sexual orientation discrimination. Baker v. Nelson did not decide the question of whether DOMA is constitutional; DOMA hadn’t even passed (or been imagined) at the time of that decision. DOMA’s constitutionality is a different question than that presented in Baker, which focused on whether a state that provides no recognition or rights to same-sex couples must allow them to marry, whereas DOMA challenges involve whether the federal government has adequate reasons to refuse to recognize existing marriages lawfully entered under state laws. In addition, Baker was decided four decades ago, prior to the Lawrence and Romer decisions, among many others, and is of questionable authority any longer on any proposition. If the Supreme Court were to overturn Section 3 of DOMA or apply heightened scrutiny, it obviously would need to overrule lower court cases that found DOMA constitutional or that rejected heightened scrutiny as applicable to governmental sexual orientation discriminaton. As for the weight of authority, it’s certainly notable that the last four courts to consider Section 3 of DOMA have all found it unconstitutional.
6. When are these cases expected to be discussed in conference at the Supreme Court? Will both be discussed at the same conference? And might it also include the Prop 8 case, Perry v. Brown?
As the Supreme Court is on hiatus now, we believe the earliest the petition for certiorari in Golinski and the petitions for certiorari in Gill would be considered by the Court is September 24th. We have no information beyond that. A certiorari petition has not yet been filed in Perry v. Brown, so it’s impossible to respond about that case.
7. What might be the impact on the expedited schedule that is currently in place in Golinski, with oral arguments at the Ninth Circuit currently scheduled for the week of 9/10? Will someone ask to stay the arguments until the Supreme Court conference? Which party to the case might ask?
The Ninth Circuit oral arguments are still scheduled to proceed the week of September 10th. We filed our opening brief on appeal July 3rd, as did the Department of Justice. The “Bipartisan” Legal Advisory Group is now due to respond to those briefs. We have no information about whether anyone will ask for a stay of some sort of the expedited schedule already ordered by the Ninth Circuit or how the Ninth Circuit might rule on such a request, if made.
8. Regarding questions of standing, does the Justice Department have standing to appeal since they were not on the losing side? And what about BLAG? Do they have standing?
We believe the Department of Justice has standing to appeal, given prior precedent, as a law the Executive Branch still feels bound to enforce was held unconstitutional and its officials were ordered to not longer enforce that law. We have not taken a position on whether BLAG has standing. If the Department of Justice does, it does not matter, as they are intervenors can brief the case in the appeal taken by the Department of Justice.
9. Do you think that the Court will apply the old rational basis/heightened divide, or will they apply a new, less tiered one? An how does this case change the strategy going forward?
We (and DOJ) believe heightened scrutiny should apply. It’s, again, speculative about what a majority of the justices will decide to reach and how they will decide.
We don’t think the strategy has changed. Both the law and the facts of how DOMA harms same-sex couples and their children — including not only the plaintiffs in any particular case but all same-sex couples and thier families, as well as widows and widowers who were married to spouses of the same sex — will be important. Those stories need to keep on being told, to our friends, families, coworkers and neighbors; to the media and on line; to our representatives in government, and to the courts. We all have a role and responsiblity in making clear just how wrong and harmful DOMA is.
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
12 Comments Leave a Comment
1.
Adam Bink | July 5, 2012 at 9:10 am
A big thanks to Jon for his willingness to explain all of the news going on. This provides a lot of insight.
2.
Scott Wooledge | July 5, 2012 at 10:58 am
Thanks for this, Jon and Scottie.
I wonder what is taking Prop 8 proponents so long to apply for cert?
Dare we hope they are getting cold feet? They seem poised to lose more than they'd gain.
I mean, they could lose the whole farm.
All they really stand to gain is keeping marriage equality out of California until 2015. Our side could just put Prop 8 repeal on the ballot at the 2014 midterms, and we'll probably win. Of course, they probably don't see it from that realpolitik lens. Jeebus has sent them on a mission!
3.
Straight Dave | July 5, 2012 at 1:34 pm
It's never really been **their** farm to begin with. They've never had anything tangible at stake – only their psyches. And the lawyers are gonna get paid regardless of the outcome. Sure, there's some real money involved, but it's not being lost by losing the case – it's being lost by pursuing the case. I don't think the people who are digging into their own pockets down at the far end of the food chain are all that closely connected to the realities in the court rooms, or the odds, or risks, or benefits. Since they are used to being led around like sheep, lied to, and manipulated, they will accept whatever their lawyers/leaders/bishops/middlemen/con-men tell them. The people footing the bill aren't going to win or lose anything. if the Catholic/LDS churches are so concerned that people will leave in droves if their homo-myths get blown up, well they're already leaving in droves, for Christ's sake. (pun not intended, but it looked good after the fact)
4.
Scott Wooledge | July 5, 2012 at 3:17 pm
I do agree, to a point.
But NOM, American Family Association, Family Research Council, DO have something very tangible at stake: the whole future of Homophobia, Inc.
If we obtain our Loving v. Virginia ruling out of the Supreme Court, the floor will drop out of their "be afraid of the gays!" business model.
Oh sure, some crazy die-hards will still give them money to fight the gay agenda, and pass a Federal Marriage Amendment.
But people living in the reality-based world will know it's game over.
Including most elected officials, who will no longer be bothered to collaborate with NOM, et al on marriage-based initiatives, recognize Federal and state statues are pointless and an amendment is impossible.
5.
Straight Dave | July 5, 2012 at 5:42 pm
Point well taken, Scott. You're right of course. I was just subconsciously limiting my scope to "legitimate" enterprises with some socially or morally-redeeming value. It's not a bad thing if NOM & Friends all go bust. For some odd reason, I don't lose a lot of sleep worrying about their plight, any more than I do about the KKK, drug dealers, or pimps.
But then the question arises about exactly who is funding and supporting Prop8, and who gets to call the shots about strategy. In the long run, all their farms are ultimately at stake, but only the money gets to talk.
6.
Scott Wooledge | July 5, 2012 at 9:23 pm
Well, I seriously doubt NOM, et al, have the long view I described to realize how seriously a big SCOTUS loss would damage THEIR business model.
And even if their minds to wander into the idea of the kind of long term damage losing at the SC could do, I'm sure they just decide to pray on it and know Jeebus is their co-counsel, so of course, the Nine will see things their way.
Even if we win no more than letting the Ninth Appeals verdict stand, it is likely to take a lot of gas out of their tank, leaving them dispirited. Their efforts will be diffused into trying, again to take the SC back, knowing it's not safe territory for the next case.
7. Prop 8 Trial Tracker &raq&hellip | July 6, 2012 at 11:21 am
[...] DOMA heading to the Supreme Court: An interview with Lambda Legal’s Jon Davidson [...]
8.
Mike in Baltimore | July 8, 2012 at 2:13 am
Could the Prop 8 proponents not have filed for cert yet because they are putting out feelers to BLAG to see if it will take over the case? After all, the Prop 8 proponents' attorneys won't care (or shouldn't) who pays them as long as they get paid.
Maybe Maggie feels that if their own money (not BLAG's) has to be spent on taking the case to SCOTUS, there won't be enough money to buy her her next Caddie (with chauffeur, of course).
9.
Sagesse | July 8, 2012 at 6:10 am
This is a hunch, but I think Proponents are waiting to file at the last minute because they don't want to hit SCOTUS in tandem with DOMA. There will be continuing developments in DOMA over the summer recess… more cases filed, more briefings and hearings in lower courts, more decisions… and they will probably continue to go against DOMA. SCOTUS will likely take DOMA in some form. The more likely they are to deal with DOMA, the less likely they are to grant cert in Perry. Punt the marriage equality decision for another day.
Proponents don't want the court thinking about DOMA and Perry together, because the overwhelming trend in DOMA is likely to 'infest' their thinking about Perry. Establishing distance by filing later and being denied may be infinitely preferable to them than processing alongside DOMA. They can still say they tried.
10.
Mike in Baltimore | July 8, 2012 at 5:54 pm
Nice thinking, except the deadline for the Prop H8 request for cert will elapse prior to the October 2012 term for SCOTUS begins, and in fact it will elapse prior to the first conference of SCOTUS for the term.
I don't think there is a rule or law that SCOTUS MUST consider requests for certs in precisely the order that they come in. And I don't think there is a rule or law that SCOTUS MUST schedule oral arguments in the order that they approve requests for cert.
If there is such a rule or law, could someone please cite it?
In other words, SCOTUS could decide at the Sept. 24 conference to schedule oral arguments on DOMA in mid-January, later decide to accept the Prop H8 case, and schedule arguments for the same date as the DOMA oral arguments.
The outcome? They may try to escape 'concurrence', but SCOTUS might foil their plans. And I doubt SCOTUS will issue a decision on any DOMA case(s) until June, therefore the DOMA case(s) will still have at least some of their attention, again foiling the 'proponents' of Prop H8, even if the cases are argued months apart.
If I, as a non-attorney, can figure out the above, then either the attorneys for Prop H8 can also figure it out, or they are MUCH dumber than we thought.
11.
StraightDave | July 9, 2012 at 10:03 am
1. I believe the Prop8 cert deadline is even before the Golinksi 9th curcuit hearing Sept 10. They are going to have to put up or shut up in less than 2 months and can't avoid any of the DOMA activity. Just their hard luck.
2. I don't see how BLAG could come anywhere near the Prop 8 case. It's a CA law that has nothing to do with Congress. BLAG has no prayer of getting standing. Anyway, Prop8 seems to have an infinite supply of hate money and pro-bono advocates.
12.
StraightDave | July 9, 2012 at 10:03 am
(continued…)
3. The larger anti-equality forces (beyond Prop8) could decide to write off CA, not spend the money, not take the risk. Reinhart has given them a gift of minimizing their losses. I think a specific cert denial by SCOTUS would be a much much worse PR disaster than slowly letting the clock tick away and the 9th's order taking effect, even though the tangible result would be the same. The only thing people would notice is the headlines that say "Supreme Court authorizes same-sex marriages in California". The legal fine points would be lost on the public.
Alternatively, not giving SCOTUS an opportunity to make any statement at all will allow a bit of a fig leaf of deniability, and perhaps drag out the public mind shift a little longer.
Leave a Comment
XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>
TrackBack URL | RSS feed for comments on this post.