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.