August 29, 2012
By Scottie Thomaston
In the Gill/Massachusetts case, there are several petitions for certiorari to the Supreme Court. The Bipartisan Legal Advisory Group (BLAG) is the main petitioner. They were the losing party at the First Circuit Court of Appeals, after attempting to defend the law for House Republicans. The Justice Department also filed a petition in the case to ensure the Court will be able to hear it, since the DOJ has argued that BLAG lacks Article III standing to appear in federal court. And finally, the state of Massachusetts filed its own conditional cross-petition. In a response brief filed at the same time as their petition, Massachusetts gave its reasoning for its own petition:
Out of an abundance of caution, the Commonwealth is also filing a conditional cross-petition for a writ of certiorari raising its Tenth Amendment and Spending Clause arguments, in the event the Court determines that such a cross-petition is required in order for this Court to reach those issues. See Conditional Cross-Petition for a Writ of Certiorari (filed July 20, 2012.)
BLAG has filed its response to the Massachusetts conditional cross-petition, suggesting that the Supreme Court deny it. BLAG writes that the conditional cross-petition is “not necessary” and that granting it “will simply complicate the briefing and scheduling of this case on the merits without materially assisting the Court[.]” BLAG also calls the Spending Clause and Tenth Amendment claims raised by Massachusetts “weak.”
Their main argument that the petition is superfluous is that:
Whether or not the Court grants Massachusetts’ conditional cross-petition, Massachusetts is a respondent for purposes of the House’s petition in No. 12-13 (and the Department’s petition in No. 12-15).
The House’s petition essentially is asking the Court to review a decision that was in favor of the state, and so the state itself has the ability to respond to arguments challenging the ruling in its favor. Therefore they suggest there is not a need for any other petition than their own. BLAG says that not only could Massachusetts still raise its Spending Clause and Tenth Amendment arguments as a respondent, but the DOJ is also defending DOMA against those particular arguments (since DOJ believes Section 3 of DOMA is unconstitutional under equal protection principles in the Fifth Amendment.) This, they suggest, could complicate the situation if the petition is accepted.
The filing attacks squarely Massachusetts’ arguments:
Massachusetts’ arguments are novel, meritless and antithetical to our basic constitutional design, which grants the federal and state governments separate sovereignty and makes each superior in its own realm except where the Supremacy Clause gives the federal government the upper hand.
Massachusetts, in its petition, said DOMA is a “sweeping federal incursion” into an area that has traditionally been regulated by states. And in the reply brief that was filed at the same time as the initial petition, Massachusetts pointed out that there was never any federal definition of marriage that precluded recognition of interracial marriage or any other type of marriage that a state deemed legal. They wrote:
BLAG responds that:
The notion that the federal government cannot adopt its own definitions for purposes of its own federal programs, but must adopt for federal-law purposes whatever definitions the states favor, would turn the Supremacy Clause on its head.
And it further argues:
The theory Massachusetts proposes is far more radical than anything ever suggested by this Court: That even when Congress has specifically defined family-relationship terms for purposes of federal law, the Tenth Amendment provides that state law will “reverse preempt” the federal definition.
BLAG also argues against Massachusetts Spending Clause argument, suggesting it is “unprecedented” and pointing out that Massachusetts has said that it relies on equal protection: if Section 3 of DOMA is unconstitutional under equal protection principles, then it also violates the Spending Clause because spending conditions can’t violate any other part of the constitution. BLAG says the fact that the arguments somewhat rely on each other only underscores the uselessness of the conditional cross-petition.
Since BLAG requested and was granted a short extension to file responses (August 31) more of their responses to petitions in this and other DOMA cases will be forthcoming soon.
h/t Kathleen for this filing