Justice Department urges Supreme Court to grant Edith Windsor’s DOMA case after Second Circuit ruling
October 26, 2012
By Scottie Thomaston
As anticipated after the Second Circuit’s ruling in Windsor v. USA striking down Section 3 of the Defense of Marriage Act as unconstitutional and applying a heightened form of judicial scrutiny to laws that classify on the basis of sexual orientation (along with defining gays and lesbians as a “quasi-suspect class” which allows laws that discriminate against them to be regarded suspiciously), the Justice Department has filed a supplemental brief in the Windsor case at the Supreme Court, telling the Court that the Second Circuit’s decision is the most appropriate one for review.
The Justice Department points out that the Court has the authority to review the Second Circuit’s decision just as it does their petition before judgment at the appeals court that they had previously filed. They write, “[a]lthough the government’s petition in this case was filed as one for certiorari before judgment, the issuance of the court of appeals’ intervening decision does not deprive the Court of the authority to grant it.” They contend that, “[i]f granted, the writ of certiorari would still be directed to the court of appeals, and this Court could still exercise jurisdiction pursuant to 28 U.S.C. 1254(1) (“Cases in thecourts of appeals may be reviewed by the Supreme Court by writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree.”). This Court’s rules do not establish any additional requirements, other than inclusion of the court of appeals’ opinion (attached as an Appendix to this brief), for a petition for a writ of certiorari after judgment.”
In its petition for certiorari before judgment, the Justice Department had asked the Court to hold onto their petition and grant it in the event no other case challenging Section 3 of DOMA is seen as an appropriate vehicle. In this filing, the Justice Department suggests a different course, writing, “Although the government initially recommended that its petition be held pending the consideration of petitions in other cases raising the same issue, the court of appeals’ decision materially strengthens this case as a vehicle for resolving the constitutionality of Section 3 of DOMA.”
The Justice Department suggests that the discussion of the level of scrutiny to be applied to laws that classify on the basis of sexual orientation (for a more detailed explanation of the concept of heightened judicial scrutiny see here) in the Second Circuit would benefit the Court’s analysis. They point out that the pending petition in the Gill case asks the Court to review a decision by the First Circuit, which had to contend with binding precedent. The Second Circuit has no precedent deciding the level of judicial scrutiny that should be applied in these cases, therefore they could fully analyze the question. The Department writes this is particularly important, “In particular, the court of appeals in Massachusetts [Gill] was constrained by binding circuit precedent as to the applicable level of scrutiny, No. 12-15 Pet. App. 10a, whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.”
They write that in the event the Court decides to deny the Windsor petition, it should grant the petition for certiorari before judgment in Golinski, another case where a lower court applied a heightened level of judicial scrutiny.
h/t Kathleen for this filing