Filed under: Golinski
Ninth Circuit Court of Appeals extends stay in Golinski v. Office of Personnel Management, challenging Section 3 of DOMA
By Scottie Thomaston
Back on July 27, the Ninth Circuit Court of Appeals canceled oral arguments in Golinski v. Office of Personnel Management, a constitutional challenge to Section 3 of the Defense of Marriage Act filed by Lambda Legal. The court also ordered that the case be held in abeyance pending possible action at the Supreme Court. Since then, of course, the Court agreed to hear United States v. Windsor, a Second Circuit decision striking down Section 3 of DOMA as unconstitutional. Resolution of the Windsor case at the Supreme Court would ultimately decide the issues presented in Golinski, so the Ninth Circuit has issued an order extending the stay pending final resolution of Windsor.
h/t Kathleen for this filing
By Scottie Thomaston
In Windsor, recall that the Justice Department had noted in a reply brief that it would soon take further action after the Second Circuit held Section 3 of the Defense of Marriage Act unconstitutional in the case. Their initial petition for certiorari was filed before judgment at the court of appeals so the Justice Department filed a supplemental brief asserting that Windsor is now the most appropriate vehicle to review challenges to Section 3 of DOMA, and the Court should review the Second Circuit’s decision instead of the district court’s.
In its latest reply brief, the Justice Department continues to assert that Windsor is the best case to review. “BLAG finds “mystifying” that the government, which had previously suggested that the state-law status of plaintiff’s foreign marriage was a cause for hesitation, no longer thinks so,” they write, referring to Edith Windsor’s Canadian marriage. But they point out that the Second Circuit addressed the claims that Windsor lacks legal standing and they unanimously rejected them. The Court typically defers to state law judgments if the district court and the appeals court agrees on the judgment, as happened here, and BLAG “has yet to come forward with a single reason why New York’s highest court would reach a different conclusion or why this Court should disturb the consistent state-law interpretation reached by every other court to have decided the issue.”
In terms of the fact that the Justice Department petitioned the Court to review the case ahead of the decision at the Second Circuit, they write that the timing is no impediment. “Notably, BLAG provides no affirmative reason why this Court would lack authority to consider the government’s petition, nor does it contend that the Court is foreclosed from doing so. Rather, BLAG relies on the fact that the government cites only one prior example (i>General Elec., supra) of this procedural circumstance. But that is entirely unsurprising: the situation in which a party files a petition for certiorari before judgment, but the court of appeals issues a judgment before the Court has considered that petition, by nature arises exceedingly infrequently.”
The Justice Department asks the Court to grant the Windsor petition first, suggesting, “[i]n particular, the court of appeals in Massachusetts 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.” The DOJ asks the Court in the event that Windsor is deemed inadequate to grant its petition in Golinski from the Ninth Circuit Court of Appeals, or Pedersen another Second Circuit case.
When the Bipartisan Legal Advisory Group (BLAG) responded to the petitions in Pedersen, it suggested that part of the IRS code might mean that the plaintiffs lack standing (because it could be read to also suggest marriage is between a man a woman, meaning Section 3 of DOMA would not be the only statute injuring them; and no challenge to that particular law was brought.) In its reply the Justice Department points out that only a few out of thirteen plaintiffs are seeking the type of claims that could fall under that statute, so the issue does not affect whether the Court can hear the challenge – as long as some plaintiffs have standing, it can.
As it has suggested before, the Justice Department continues to press that as Executive Branch defendants, judgment was entered against them in the lower court, thus they have standing to appeal. It also continues to press “the principal justification for the government’s petition in this case: to ensure that this Court can timely and definitively resolve Section 3’s constitutionality.” Fighting off claims that it could have petitioned the Court to hear this case years ago, they state that, “the first court of appeals decision holding that Section 3 violated the Fifth Amendment’s guarantee of equal protection was issued on May 31, 2012. That recent development significantly changed the landscape of DOMA litigation, which has continued to advance quickly and has produced similar holdings in every court to have considered the issue since, including the Second Circuit’s decision in Windsor.” And last, the Justice Department writes that changing the briefing schedule in the case would not be complicated, and it points to past instances in which that happened, like Department of Health and Human Services v. Florida, one of the challenges to the Patient Protection and Affordable Care Act.
In its Massachusetts reply brief, addressing the Spending Clause and Tenth Amendment violations alleged by the state of Massachusetts in regards to Section 3 of DOMA, the Justice Department writes that the Court could hear these arguments whether or not it takes up the petition, and that either way, it should reject them.
Interestingly, the Justice Department argues that federally, “who counts as married” is important, at least in a narrow way: “Although domestic relations and the incidents of marriage have fallen largely within the realm of state regulation, “Congress surely has an interest in who counts as married” for purposes of federal benefit programs. Pet. App. 15a. As the court of appeals recognized (id. at 16a), moreover, “section 3 governs only federal programs and funding, and does not share the two vices of commandeering or direct command.” But for its violation of equal protection, Section 3 would be a proper exercise of the Congress’s Spending Clause power. See pp. 7-8,
supra.The Commonwealth’s Tenth Amendment claim thus fails.”
In its reply brief in Golinski, the Justice Department reiterates the points it made in the other briefs: (1) it has standing to seek review (2) granting this petition would not complicate the briefing process (3) review is warranted to ensure a timely review of the issues.
These cases, along with the Prop 8 case, are scheduled for the November 30 conference at the Supreme Court, where they could decide whether to take up any of these petitions.
h/t Kathleen, as always, for these filings
DOJ reply in Windsor:12-307 #9
DOJ reply in Pedersen:12-302 #6
DOJ reply in Massachusetts:12-15 #8
DOJ reply in Golinski:12-16 #9
House GOP opposes Justice Department petition seeking Supreme Court review of Golinski v. OPM, challenging Section 3 of DOMA
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