Filed under: Golinski
Supreme Court acts on DOMA, marriage equality, and same-sex benefits petitions that were held pending yesterday’s decisions
By Scottie Thomaston
Yesterday, after the Supreme Court issued its final decisions of the term, it held a conference to determine what the Court should do about the remaining petitions for review in cases related to marriage equality. Recall that although Windsor was the only DOMA case ultimately accepted for review, the Court was actually asked to hear several more challenges to the Act. And although the Prop 8 case was ultimately the vehicle chosen to discuss, possibly, marriage equality, the Court was faced with other cases.
Today’s order list by the Court resolves these DOMA cases, and addresses the petitions in the marriage and benefits cases in their early stages, without commenting on a final outcome so early in the process.
First, in the case marriage equality advocates are watching closely, after yesterday’s final decision in the Prop 8 case: the Court declined to review the petition in Nevada’s marriage equality case, filed by the proponents of the constitutional marriage ban in the state. That case, initially filed by Lambda Legal, is known as Sevcik v. Sandoval in the lower courts, and Coalition for the Protection of Marriage v. Beverly Sevcik, et al at the Supreme Court. So far, only the district court has issued a decision: the judge ruled against the same-sex couples who filed the lawsuit, using a very deferential standard of review. The plaintiffs appealed the case to the Ninth Circuit Court of Appeals, where they were awaiting briefing and arguments; then, the Coalition, the ballot initiative proponents, asked the Supreme Court to rule on the merits of a broad constitutional right to same-sex marriage. The Coalition asked the Court to rule against such a right and to do so even as the plaintiffs continued to argue that the case is much narrower. A request to review a petition before judgment is rarely granted, so it’s no surprise the Court would want to wait until there is full briefing and arguments at the Ninth Circuit.
The Sevcik case was placed on a parallel track with another marriage case, Jackson v. Abercrombie, out of Hawaii. They are both in the Ninth Circuit and both were appealed by same-sex couples who lost in the district court. The Jackson case is not at issue at the Supreme Court at this stage. Now that the petition was denied, both cases can continue. When the Ninth Circuit does hear arguments and issue a ruling, the losing party can ask the Court to review it, and that seems like a likely request in the future. It’s not clear based on yesterday’s decisions if the Court would take up another marriage case, but either way, they likely won’t see another marriage equality petition for a year.
Second, they looked at the other DOMA petitions. The Court simply denied review in the other challenges. The section of the statute at issue in all of these cases was declared unconstitutional yesterday, so it can’t be constitutional in any other situation. There are still some remaining issues, because in some DOMA challenges which have not yet reached the Court (or even an appeals court) other statutes are at stake. There are military and immigration statutes which use the same language as Section 3 of DOMA. However, yesterday’s opinion was written in a way that suggested the definitions violated both equal protection and federalism principles, so there is language which could be used in these other challenges. In denying review of the other DOMA cases, the lower courts will determine if there are any outstanding issues aside from the ones decided in Windsor yesterday. If not, the gay plaintiffs in these cases win judgment in their favor.
Another case the Court declined to review was Brewer v. Diaz. Arizona’s Governor Jan Brewer petitioned the Court to block a preliminary injunction that was preventing her from implementing a law to deny same-sex couples benefits in the state. It was in the early stages, and if they had taken it up and ruled in her favor, the state would have been able to block the benefits only while the case continued in the lower courts – there was not yet an ultimate judgment on whether the law in the state is permissible or not. Since they decided not to address the case in these early stages, same-sex couples in Arizona will receive benefits while the case works through the courts. The Court could still grant a petition if one is filed after the appeals court rules, but that won’t happen for awhile.
In short, some Ninth Circuit cases will continue, on marriage and benefits, but the only challenges left in the DOMA cases will be those in which Section 3 of DOMA and another statute were challenged, since the other statutes weren’t at issue in Windsor. And with Sevcik and Jackson at the Ninth Circuit, and DeBoer in Michigan continuing, more court action is coming soon.
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
DOMA: A look at the Justice Department’s reply brief in Golinski v. OPM at the Ninth Circuit and its arguments on standing and due process
By Scottie Thomaston
Oral argument at the Ninth Circuit in Golinski v. Office of Personnel Management was canceled, due to the petition for certiorari to the Supreme Court asking for review of the district court’s decision before judgment at the Ninth Circuit. However, the briefing schedule at the Ninth Circuit is still in place.
The Justice Department filed its reply brief along with a motion to address the plaintiff’s additional arguments. First, in a footnote, the Justice Department explains why it is still required to file briefs:
On July 27, 2012, this Court vacated the oral argument scheduled for September 10, 2012, and ordered that “this case be held in abeyance pending resolution of the petition for a writ of certiorari before judgment pending before the United States Supreme Court.” Doc. 147 at 1. Counsel for the government contacted the Clerk’s Office and was informed that the government should file this reply brief because the briefing schedule had not been vacated.
The reply brief is a continuation of the dispute over legal standing to appeal the district court’s decision, in addition to an argument over the plaintiff’s claims that Section 3 of DOMA violates her due process rights. The Justice Department argues that it has standing to appeal because the judgment entered by the lower court impacts the Executive Branch’s enforcement of the law:
While the government concurs substantively with the district court’s conclusion that Section 3 is unconstitutional, the President has directed federal agencies to continue to enforce DOMA “unless and until . . . the judicial branch renders a definitive verdict against the law’s constitutionality.” SER 1020. As the Attorney General has explained, “this course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” SER 1020. The Executive Branch defendants’ briefs in the district court on the constitutional issue did not alter the defendants’ decision to comply with the Act, and the district court’s order enjoining them from doing so thus prevented them from taking steps they otherwise would have taken.
In other words, the Executive Branch believes that it is required to enforce Section 3 of DOMA until the judiciary issues a final and definitive ruling, and since a district court has blocked enforcement, the Government is an “aggrieved” party in the case.
The Justice Department also questions – as it has continued to do – BLAG’s standing in federal court, and it suggests that if a court determines BLAG lacks standing, but the Justice Department’s appeal is also dismissed, it would prevent resolution of the case:
If this Court were to dismiss the government’s appeal, but BLAG is mistaken about its independent standing, that mistake would necessarily lead this Court, or the Supreme Court, to dismiss the appeal on standing grounds without resolving the merits. Resolution of the constitutionality of Section 3 of DOMA would thus be delayed, confounding BLAG’s stated desire to achieve a prompt determination on the merits.
The Justice Department says that “advisory groups” have never been given Article 3 standing:
And indeed, the Supreme Court has never held that Congress as a whole, much less a majority of an advisory group to the House of Representatives such as BLAG, has standing, on its own, to seek appellate review of a decision striking down an Act of Congress. The case relied upon mostextensively by BLAG, Chadha, does not hold that Congress can pursue litigation on its own whenever a federal law is invalidated and the Executive Branch agrees the law is not constitutional.
Chadha, rather, held that the Executive Branch’s aggrieved status created “adequate Art. III adverseness,” and that Congress’s formal intervention to defend the constitutionality of the statute at issue placed the justiciability of the controversy “beyond doubt.”
And the Justice Department says the Supreme Court has held that when separation of powers issues are at stake, they have allowed Congress to have standing, but there are no issues of separation of powers implicated here.
The Justice Department wants Section 3 of DOMA struck down as a violation of equal protection principles implicitly found in the Fifth Amendment, but it does not believe that Section 3 violates due process “fundamental” rights. It argues there is no fundamental right to receive health benefits under a federal program:
Thus, the Supreme Court has held that it protects “the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion,” id. at 720 (citations omitted), but has cautioned against expanding these rights, see id.;see also Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). The Supreme Court has also required “a careful description of the asserted fundamental liberty interest,” Glucksberg, 521 U.S.at 721 (quotations marks omitted), and this Court has explained that “a narrow definition of the interest at stake” is necessary. Raich v. Gonzales, 500 F.3d 850, 862-63 (9th Cir.2007). Here, the specific right at issue is obtaining health benefits under a federal benefit program, the FEHBA. While denial of those benefits violates the equal protection component of the Due Process Clause in these circumstances, there is no substantive due process right to access to that health benefit program. A holding based on substantive due process would require concluding that there is a substantive constitutional right to FEHBA benefits, without regard to the eligibility of other classes of persons to receive those benefits. Cf. Lawrence v. Texas, 539 U.S. 558,575 (2003) (declining to rule on equal protection grounds because it would leave open the possibility that the “prohibition would be valid if drawn differently” to ban sodomy for both same-sex and different-sex participants). But there is no such substantive right here. Instead, the Supreme Court “cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid.”
The Justice Department argues the fundamental right to marry is not implicated since the plaintiff is already married:
But the challenged denial of federal benefits does not affect whether plaintiff may marry under state law, or whether she and her spouse may remain together as a couple, enjoy familial privacy, or raise children in a manner that would undergird a substantive due process entitlement.
So, the Justice Department argues that the “proper” way to evaluate Section 3 of DOMA is within the equal protection context.
By Scottie Thomaston
Oral argument in the Ninth Circuit challenge to Section 3 of the Defense of Marriage Act was scheduled for September 10. The Justice Department petitioned the Supreme Court for certiorari, to review the case, and the Court won’t decide whether to take the case until September 24 or later. Now the Ninth Circuit has canceled oral argument in the case pending the Supreme Court conference and subsequent decision to hear the case or not.
The filing says:
The oral argument scheduled for September 10, 2012, is VACATED. The Court directs that this case be held in abeyance pending resolution of the petition for a writ of certiorari before judgment pending before the United States Supreme Court in Office of Personnel Management, et al., v. Golinski, No. 12-16 and, if certiorari is granted in this case, pending determination of the case on the merits.