September 12, 2012
By Scottie Thomaston
The Justice Department has filed its own petitions for certiorari before judgment in two more challenges to Section 3 of the Defense of Marriage Act. Those cases are Office of Personnel v. Pedersen, brought by Gay and Lesbian Advocates and Defenders (GLAD) and Windsor v. USA, brought by the ACLU and NYCLU. Both cases are also currently on appeal to the Second Circuit Court of Appeals. The Justice Department had filed earlier petitions for Supreme Court review in the Golinski case and in Gill/Massachusetts.
In its new filing in Pedersen, the Justice Department explains that while the question of whether Section 3 of DOMA violates the equal protection principles implicit in the Fifth Amendment “warrants this Court’s review now,” the Court “should hold this petition pending its consideration and disposition of the petitions in Massachusetts and Golinski.” The filing notes that if the Court were to grant either of those petitions, there would be no need to review the new filings in Pedersen or Windsor at all, since the same questions are addressed and the Court would have all it needs to resolve the constitutionality of Section 3 of DOMA.
But the filing points to the district court judge’s thorough evaluation of the proper level of judicial scrutiny required for classifications based on sexual orientation. The George W. Bush-appointed district court judge in Pedersen, Vanessa Bryant, ultimately decided that Section 3 of DOMA fails under the most relaxed form of judicial scrutiny, rational basis review, but not before undertaking a fairly lengthy analysis of the history of discrimination against gays and lesbians, the question of whether homosexuality is immutable, the political power that gays and lesbians have demonstrated, and the other factors laid out by the Supreme Court in determining whether a classification of people is ‘suspect’ and should be reviewed under a more searching judicial inquiry. The Justice Department suggests the lower court’s analysis could materially assist the Supreme Court, should it decide that issue requires resolution.
Since the plaintiffs were the prevailing party in the court below in these cases, the Justice Department says, there is a “threshold question” whether plaintiffs, who obtained a district court judgment and decision entirely in their favor, have appellate standing to seek certiorari before judgment.” But the judgments entered in those cases were against the Executive Branch, so the Department’s petitions erase the need to address that question, as the Executive Branch “plainly” has legal standing to petition the Supreme Court for certiorari before judgment.
Ultimately, the Justice Department suggests, if the Supreme Court chooses not to grant the petitions in those prior cases, it should grant their petition in Pedersen or Windsor.
In the Windsor petition, the Justice Department notes that the case presents an additional hurdle: whether Edith Windsor has legal standing to pursue her claims since she was married in Canada. There is a question whether New York law would have recognized her marriage as legal (and the Bipartisan Legal Advisory Group (BLAG), tasked with defending Section 3 of DOMA on behalf of House Republicans, have asked the Second Circuit to certify that question to the New York Court of Appeals.)
Thus, the Department writes, this petition should be granted only if the Court declines to review Golinski and Gil>/Massachusetts, and if it decides that Pedersen is not an appropriate vehicle to review the constitutionality of Section 3 of DOMA.
h/t Kathleen for these filings
DOJ cert petition in Pedersen:DOJ-Cert Petition_Pedersen
DOJ cert petition in Windsor v. USA:12-307 #1_DOJ Petition