House GOP opposes Justice Department petition seeking Supreme Court review of Golinski v. OPM, challenging Section 3 of DOMA
September 10, 2012
By Scottie Thomaston
On July 31, the Bipartisan Legal Advisory Group (BLAG), tasked with defending Section 3 of the Defense of Marriage Act on behalf of House Republicans, was granted an extension to file responses to all the petitions for certiorari to the Supreme Court, until August 31. The responses have been coming in. First, BLAG opposed Massachusetts’ conditional cross-petition in its challenge to Section 3 of DOMA. Then, it opposed Windsor’s petition for Supreme Court review.
BLAG has now filed a brief in opposition to the Justice Department’s petition for certiorari before judgment in Golinski v. Office of Personnel Management. Most of the brief relies on the same arguments in their Windsor opposition brief: (1) the Gill case presents the exact same question and it has reached the Court after judgment by the appeals court (in that case the First Circuit Court of Appeals), while Golinski awaits review by the Ninth Circuit Court of Appeals; (2) granting review in this case would not speed up the final decision (for this, they write, “the Department cannot credibly assert an extraordinary need for expedition, when the Executive Branch’s own actions throughout the DOMA litigation have been thoroughly inconsistent with that position[,]” arguing that the Justice Department could have filed a petition for a writ of certiorari before judgment in 2010 if they wanted to speed up the process.)
Additionally, though, the brief suggests that Golinski presents “vehicle problems” that would suggest it isn’t a good test case for reviewing the constitutionality of Section 3 of DOMA. One of those vehicle problems, they write, is the fact that the case could have an abnormal briefing schedule, “because the Department prevailed both in the First Circuit and the district court here, it would make no sense to give the Department the benefit of an opening and reply brief in either case, and it would make even less sense to have disparate briefing schedules such that those defending DOMA would file first in Gill while the Department files first here.” Moreover, as they discussed in their opposition brief in Massachusetts, they are asserting that Article III ‘standing’ issues would come up in the Justice Department’s petition.
And lastly, they claim that the Justice Department operates as a de facto amicus, a “friend of the Court”, instead of an actual party to the case. BLAG refers to itself as “the only party defending DOMA” and suggests that the Justice Department has no legal right to “special consideration.” (The Justice Department’s view is that, as part of the Executive Branch, which is tasked with enforcing laws, it lost the ability to do that when judgment was entered against enforcement of Section 3, so it has a right to be a party.) They write that, “If this Court grants the Department’s Petition here, it will presumably need to consolidate the cases and realign the parties to achieve the same basic effect [to align the parties properly before the Court so that all the parties attacking DOMA are respondents who want the judgment below affirmed]. There is no need forsuch machinations. The correct answer here is also the most straightforward: The proper petitioner is the party aggrieved by the one court of appeals decision to reach final judgment.”
So, they suggest, the Court should grant the petition in Gill and deny this one.
h/t Kathleen for this filing