DOMA: A look at the Justice Department’s reply brief in Golinski v. OPM at the Ninth Circuit and its arguments on standing and due process
August 7, 2012
By Scottie Thomaston
Oral argument at the Ninth Circuit in Golinski v. Office of Personnel Management was canceled, due to the petition for certiorari to the Supreme Court asking for review of the district court’s decision before judgment at the Ninth Circuit. However, the briefing schedule at the Ninth Circuit is still in place.
The Justice Department filed its reply brief along with a motion to address the plaintiff’s additional arguments. First, in a footnote, the Justice Department explains why it is still required to file briefs:
On July 27, 2012, this Court vacated the oral argument scheduled for September 10, 2012, and ordered that “this case be held in abeyance pending resolution of the petition for a writ of certiorari before judgment pending before the United States Supreme Court.” Doc. 147 at 1. Counsel for the government contacted the Clerk’s Office and was informed that the government should file this reply brief because the briefing schedule had not been vacated.
The reply brief is a continuation of the dispute over legal standing to appeal the district court’s decision, in addition to an argument over the plaintiff’s claims that Section 3 of DOMA violates her due process rights. The Justice Department argues that it has standing to appeal because the judgment entered by the lower court impacts the Executive Branch’s enforcement of the law:
While the government concurs substantively with the district court’s conclusion that Section 3 is unconstitutional, the President has directed federal agencies to continue to enforce DOMA “unless and until . . . the judicial branch renders a definitive verdict against the law’s constitutionality.” SER 1020. As the Attorney General has explained, “this course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” SER 1020. The Executive Branch defendants’ briefs in the district court on the constitutional issue did not alter the defendants’ decision to comply with the Act, and the district court’s order enjoining them from doing so thus prevented them from taking steps they otherwise would have taken.
In other words, the Executive Branch believes that it is required to enforce Section 3 of DOMA until the judiciary issues a final and definitive ruling, and since a district court has blocked enforcement, the Government is an “aggrieved” party in the case.
The Justice Department also questions – as it has continued to do – BLAG’s standing in federal court, and it suggests that if a court determines BLAG lacks standing, but the Justice Department’s appeal is also dismissed, it would prevent resolution of the case:
If this Court were to dismiss the government’s appeal, but BLAG is mistaken about its independent standing, that mistake would necessarily lead this Court, or the Supreme Court, to dismiss the appeal on standing grounds without resolving the merits. Resolution of the constitutionality of Section 3 of DOMA would thus be delayed, confounding BLAG’s stated desire to achieve a prompt determination on the merits.
The Justice Department says that “advisory groups” have never been given Article 3 standing:
And indeed, the Supreme Court has never held that Congress as a whole, much less a majority of an advisory group to the House of Representatives such as BLAG, has standing, on its own, to seek appellate review of a decision striking down an Act of Congress. The case relied upon mostextensively by BLAG, Chadha, does not hold that Congress can pursue litigation on its own whenever a federal law is invalidated and the Executive Branch agrees the law is not constitutional.
Chadha, rather, held that the Executive Branch’s aggrieved status created “adequate Art. III adverseness,” and that Congress’s formal intervention to defend the constitutionality of the statute at issue placed the justiciability of the controversy “beyond doubt.”
And the Justice Department says the Supreme Court has held that when separation of powers issues are at stake, they have allowed Congress to have standing, but there are no issues of separation of powers implicated here.
The Justice Department wants Section 3 of DOMA struck down as a violation of equal protection principles implicitly found in the Fifth Amendment, but it does not believe that Section 3 violates due process “fundamental” rights. It argues there is no fundamental right to receive health benefits under a federal program:
Thus, the Supreme Court has held that it protects “the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion,” id. at 720 (citations omitted), but has cautioned against expanding these rights, see id.;see also Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). The Supreme Court has also required “a careful description of the asserted fundamental liberty interest,” Glucksberg, 521 U.S.at 721 (quotations marks omitted), and this Court has explained that “a narrow definition of the interest at stake” is necessary. Raich v. Gonzales, 500 F.3d 850, 862-63 (9th Cir.2007). Here, the specific right at issue is obtaining health benefits under a federal benefit program, the FEHBA. While denial of those benefits violates the equal protection component of the Due Process Clause in these circumstances, there is no substantive due process right to access to that health benefit program. A holding based on substantive due process would require concluding that there is a substantive constitutional right to FEHBA benefits, without regard to the eligibility of other classes of persons to receive those benefits. Cf. Lawrence v. Texas, 539 U.S. 558,575 (2003) (declining to rule on equal protection grounds because it would leave open the possibility that the “prohibition would be valid if drawn differently” to ban sodomy for both same-sex and different-sex participants). But there is no such substantive right here. Instead, the Supreme Court “cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid.”
The Justice Department argues the fundamental right to marry is not implicated since the plaintiff is already married:
But the challenged denial of federal benefits does not affect whether plaintiff may marry under state law, or whether she and her spouse may remain together as a couple, enjoy familial privacy, or raise children in a manner that would undergird a substantive due process entitlement.
So, the Justice Department argues that the “proper” way to evaluate Section 3 of DOMA is within the equal protection context.