Filed under: Gill/Massachusetts
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
By Scottie Thomaston
The state of Indiana filed an amicus brief with fourteen other states in the Gill case, challenging Section 3 of the Defense of Marriage Act. The case has reached the Supreme Court through petitions for certiorari by the Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans after the Justice Department decided it would no longer defend Section 3, and through a petition by the Justice Department itself. The state of Massachusetts, whose case is consolidate with Gill at the appellate level, has also filed a petition for certiorari
Indiana, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, and Virginia signed onto the brief, which is largely based on the argument that “procreation” is a rational basis for the Act and for state marriage laws as well. Arguing that the Supreme Court has held that “[i]he same equal protection principles have generally applied to state and federal laws,” the attorneys write that “if the federal government has no legitimate reason to define for the purpose of federal programs, considerations of tradition or gradualism are unlikely to save state marriage laws—especially those that differentiate between opposite-sex and same-sex unions in name only.” In their view, a decision nullifying the Congressional definition of marriage would necessarily use logic that would lead to the evisceration of state marriage definitions.
Referring to the First Circuit’s holding that Section 3 of DOMA has no demonstrated link to its purported goals of strengthening heterosexual marriage as a “startling conclusion”, the brief says the First Circuit “answered the wrong questions” to reach its decision, because in the states’ view, “the panel below simply needed to ask why Congress sought to incentivize traditional marriages and whether that rationale extends to same-sex couples.” In their view, the case turns on whether there are important differences between same-sex and opposite-sex couples, and they offer the ability to procreate as one important distinction. To the states, the definition of marriage is “based on an understanding that civil marriage recognition arises from the need to encourage biological parents to remain together for the sake of their children.” The fifteen states argue that there is no government interest in promoting marriage just for the sake of it, without reference to procreative purposes. And they suggest same-sex couples can’t procreate, therefore it’s reasonable to leave the distinction of being “married” solely to opposite-sex couples.
Marriage creates the social norm “that potentially procreative sexual activity should occur in a long-term, cohabitative relationship.” Quoting Maggie Gallagher, the brief suggests that “society” channels people into opposite-sex marriages for procreation, and that Section 3 of the federal Defense of Marriage furthers that channeling, “Through civil recognition of marriage, society channels sexual desires capable of producing children into stable unions that will raise those children in the circumstances that have proven optimal. Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773, 781-82 (2002). “[M]arriage’s vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its consequences.” Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can.J. Fam. L. 11, 47 (2004).”
And same-sex relationships are still recognized by arrangements that are not called marriage, that are just “alternatives” to the “model”: “This ideal does not disparage the suitability of alternative arrangements where non-biological parents have legal responsibility for children. But these relationships are exactly that—alternatives to the model.” The states also write that courts have long said that procreation is a rational basis for traditional marriage.
The states argue that Baker v. Nelson controls the outcome of DOMA litigation. In Baker, the Supreme Court dismissed “for want of a substantial federal question” a case involving a gay couple in Minnesota who sought a marriage license but was denied. Since under the (now repealed) law that required mandatory review of the Minnesota Supreme Court’s Baker decision, the Supreme Court’s dismissal is a decision “on the merits” (at least regarding the precise issues at stake in Baker), the states argue that the question of restricting the definition of marriage to opposite-sex couples was already reached and decided on.
The states want the Court to grant the petition and intervene in the dispute because, “The failure of the decision below to [articulate a coherent rationale for government recognition of both same-sex and opposite-sex legal marriages]—and indeed of any of the courts invalidating traditional marriage and its benefits to do so—while abnegating one of the most fundamental and enduring civil institutions in American life, justifies this Court’s intervention.”
h/t Kathleen for the brief
Plaintiffs in Gill v. Office of Personnel Management, challenging Section 3 of DOMA, ask Supreme Court to review the case
By Scottie Thomaston
Gay and Lesbian Advocates and Defenders (GLAD) who is representing the plaintiffs in Gill v. Office of Personnel Management challenging Section 3 of the Defense of Marriage Act has filed a brief in response to the petitions for certiorari to the Supreme Court filed by the Bipartisan Legal Advisory Group (BLAG), who is defending the law on behalf of House Republicans, and by the Justice Department, who is fighting DOMA in court. Their brief asks the Supreme Court to hear their challenge.
Since BLAG and the Justice Department have both asked the Court to take up the challenge, the filing of this brief with the Court means all three parties now support Supreme Court review. The brief describes DOMA as “a class-based enactment, [...] a federal declaration that the Respondents’ marriages are not “real marriages” and merit no respect under any federal law.”
They argue that there is “no dispute” that the legal issues raised in this case are of national importance, pointing to the fact that BLAG and the Justice Department want Supreme Court review of the case. They write, “The Court should not be swayed by the arguments on the merits that BLAG chose to present in its petition… [A]s multiple courts have recently recognized, there are compelling arguments that Congress violated the equal protection guarantee when it decided for the first time to deny all recognition to a single class of state-sanctioned marriages.”
In its opinion striking down Section 3 of DOMA, the First Circuit used the more lenient rational basis test to analyze the constitutionality of the law. In doing so, they considered cases like Romer v. Evans and Dept of Agriculture v. Moreno in which the Supreme Court struck down laws using rational basis review while paying attention specifically to the fact that the laws were based on “animus” against a specific group (gays and lesbians in Romer, hippies in Moreno.) BLAG contended in its petition for certiorari that this approach is “novel” and “unique” among other things. The Gil plaintiffs respond to this point, writing, “While BLAG objects, Moreno, Cleburne, and Romer do in fact illustrate that where unpopular groups or historically disadvantaged minorities are concerned, the Court has, in fact, been careful to scrutinize claims of “fit” between a policy and its stated objectives (Moreno); found alleged legislative interests unconvincing (Cleburne); and not hesitated to find a lack of a relationship between a status based enactment and legitimate interests (Romer). Regardless of its word choice – e.g., “intensified scrutiny,” “greater rigor,” or “closer examination,” DOJ. App. 11a, 13a, 15a – the First Circuit accurately captured the nuances of rational basis review as requiring an examination of whether a law’s justifications are simply pretexts.”
Regarding the level of scrutiny the Supreme Court should apply to laws impacting gays and lesbians, plaintiffs write, “rational basis analysis the First Circuit actually applied to consider and ultimately reject each of the proffered government interests for DOMA further belies BLAG’s assertion that it invented some “new” form of review.” However, although they accept the rational basis review applied by the First Circuit, plaintiffs ask the Court to apply a heightened form of judicial scrutiny. They suggest, “If the Court grants review, it should also consider whether heightened scrutiny applies to laws that discriminate based on sexual orientation” because “this Court’s silence on the standard of review has allowed many lower courts to continue to apply outdated Circuit precedent that sexual orientation discrimination is subject to only rational basis review, thus leaving gay men and lesbians vulnerable to intentional discrimination.” As the Justice Department has already pointed out, gays and lesbians fit the qualifications to receive heightened scrutiny.
The Court will decide whether it will hear Gill v. OPM in early October.