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Part 1: What’s Next for DOMA and Marriage Equality on Trial?
by Scottie Thomaston

The past few weeks have seen a flurry of new developments in the courts concerning DOMA and marriage equality cases. The proponents of Prop 8 – in Perry, the challenge to the California constitutional amendment – petitioned the Supreme Court to review the case. Section 3 of DOMA was struck down yet again, this time by Judge Vanessa Bryant, an appointee of President George W. Bush, in Pedersen v. Office of Personnel Management. And the Bipartisan Legal Advisory Group (BLAG), who is defending Section 3 of DOMA on behalf of House Republicans after the Justice Department decided to drop their defense, has lost a few requests for stays of proceedings in some DOMA cases. The sheer number of these cases can cause a lot of confusion and headaches; I’m told that even people who are solely focused on following DOMA cases are resorting to the use of spreadsheets to keep track of everything. So here is a series that is intended to be a rundown of where these cases stand after the latest developments.

This part will consist of cases that are currently before the Supreme Court. Since at this point only DOMA challenges and the Prop 8 challenge are before the Court, this post will focus primarily on DOMA. Future posts will be geared toward updates in the district and appeals courts, and those will include both DOMA and marriage equality cases.

A note regarding the cases that are currently before the Supreme Court: the Court is not in session until October. There will be a conference (to look at petitions for certiorari and vote on whether to review cases or not) on September 24 and another the following week. During a conference, either in late September or early October, the Court will decide whether to hear challenges to Section 3 of DOMA, and which cases it will review. Instead of writing this at the end of all the case updates on this post, I’ll leave it up here as a note; so just assume that the Supreme Court will decide whether and which cases to hear on these dates.

Gill v. Office of Personnel Management/Massachusetts v. Department of Health and Human Services

The Gill and Massachusetts cases were decided separately by the same district court judge, Nixon appointee Joseph Tauro, and then consolidated on appeal. Gill was filed by Gay and Lesbian Advocates and Defenders (GLAD) and Massachusetts was filed by Massachusetts Attorney General Martha Coakley. In both cases, Judge Tauro struck down Section 3 of DOMA. (GLAD said it violated the equal protection principles in the Fifth Amendment and Massachusetts said it violated the Tenth Amendment and the Spending Clause. Judge Tauro agreed.) At the First Circuit, on appeal, GLAD, the Justice Department and the Massachusetts AG’s office opposed the law; Paul Clement argued in favor of upholding the law, for BLAG. Notably, the oral argument at the First Circuit was the first time the Justice Department suggested that they were not going to defend Section 3 of DOMA “on any basis.” Before, as per Attorney General Eric Holder’s letter explaining the Government’s decision to stop defending Section 3, the Government had agreed that Section 3 would pass the most lenient form of judicial scrutiny, rational basis. They had explained they favor application of a heightened form of judicial scrutiny, however, and Section 3 of DOMA easily fails that test. At the First Circuit, the Justice Department would not defend the law, even if it were scrutinized using the rational basis test.

The three-judge panel at the First Circuit, consisting of two Republican-appointed judges and one Democratic-appointed judge, unanimously struck down Section 3 of DOMA as unconstitutional. Their decision applied a form of rational basis review that looks closely at laws that could be perceived to have been enacted with “animus” against a particular group, and they considered federalism concerns important in their review of the law as well.

On June 29, BLAG petitioned the Supreme Court for certiorari, asking them to review the First Circuit’s opinion.

Then, on July 3, the Justice Department petitioned the Supreme Court for certiorari; they did so in Gill and in another case, Golinski v. Office of Personnel Management. Gill, unlike Golinski, had been fully briefed, argued, and decided by an appeals court, so it is ready for Supreme Court review. The other two parties to these consolidated cases, Massachusetts and the Gill plaintiffs, also asked the Supreme Court to review the challenge: Massachusetts filed a reply brief to the petitions for certiorari and then filed its own petition; GLAD (the Gill plaintiffs) filed a reply brief agreeing that the Supreme Court should review the case and affirm the judgment. The Court will decide to review it or not at its conference, but there is an important caveat: Justice Elena Kagan may recuse herself from the Gill case because of her work as Solicitor General. During questioning at her confirmation hearing as a Supreme Court Justice, she pointed to Gill as a possible case meriting her recusal. It is, of course, up to each individual Justice’s discretion to recuse or not, so she may decide not to after all. If she does recuse herself and the Justices decide to take the case (it takes four votes to grant review), there could be a 4-4 split on any final decision. This would mean the First Circuit’s decision stands but there would be no wider precedent beyond that circuit.

One final note about Gill: these challenges to Section 3 of DOMA have been decided using differing standards of review. While BLAG referred to the standard of review used to decide Gill in its petition for certiorari as “novel”, among other things, it is actually a relatively common way the courts have resolved cases that involve the rights of minority groups that typically have laws passed against them, but who are not considered to make up a “suspect classification.” Certain classifications of people are considered “suspect” under equal protection principles, because classifying people in certain groups can hurt those groups. So, for example, race is a suspect classification. Laws that are racially-motivated are reviewed under strict scrutiny, the strictest form of review.

Laws often fail this level of review because they have to be narrowly tailored and further a compelling government interest. (Rational basis, on the other hand, must only be rationally related to a legitimate government interest. It has been said that as long as the reason for the law is framed in grammatically correct sentences it can pass rational basis review.) Right now, laws affecting gays and lesbians are only reviewed under rational basis (though, as noted, courts have applied this “rational basis with bite” standard that includes special consideration of animus.) This is why the Justice Department’s involvement in DOMA litigation is exceedingly important: for the first time the United States Government is admitting that it has played a part in discriminating against gays and lesbians, and that any classifications of gays and lesbians for purposes of laws should be suspect. While the Justice Department has not taken a position on the precise level of scrutiny that should be afforded to laws affecting gays and lesbians, even a relatively heightened form of judicial review from what we have now would result in the courts striking down a lot more anti-gay legislation.

Romer v. Evans is emblematic of the type of review employed in Gill: in Romer, the Supreme Court struck down Amendment 2 in Colorado, an anti-gay amendment that eliminated antidiscrimination protections across the board for gays and lesbians in the state. The Court said that animus alone is no rational basis for a law. This follows from earlier cases, Cleburne and Moreno, which considered animus in reviewing laws that affected certain groups that were not part of a “suspect class.” The type of review used in these cases is important: as you’ll see, the Court, through the current petitions, will be presented with cases in which judges struck down Section 3 of DOMA, but did so by employing essentially three different forms of judicial scrutiny. While the Supreme Court can do what it wants (it is the last word on the United States Constitution), it could prove useful to present the Court with many options if they decide to finally take on the issue of the level of scrutiny that should be applied to cases that impact gays and lesbians.

Golinski v. Office of Personnel Management

Golinski is a case that morphed into a challenge to the constitutionality of Section 3 of DOMA after a complicated procedural history. It resulted in a district court decision by Judge Jeffrey White striking down Section 3 as unconstitutional. The decision is notable as the first one to strike down Section 3 using heightened scrutiny. After the district court decision, the Justice Department asked the Ninth Circuit Court of Appeals for an initial en banc hearing. That typically means a hearing before the full panel of circuit judges, but the Ninth Circuit is so big that they assemble a panel of 11 judges in an “en banc panel.” (There is also a “super en banc” with all the judges but I don’t think that has ever been used. The Justice Department likely asked for this because the three-judge panel can’t overturn circuit precedent, but the en banc panel can, and circuit precedent at the Ninth has held that laws affecting gays and lesbians have to be reviewed under rational basis scrutiny because gays and lesbians can’t be a suspect class. The precedent, High Tech Gays, relied on the 1986 case Bowers v. Hardwick which upheld a law criminalizing same-sex intimacy as constitutional. High Tech Gays said that laws affecting gays and lesbians can’t be “suspect” because the conduct that defines gays and lesbians can be criminalized. However in 2003, Bowers was overruled in Lawrence v. Texas, and usually when the foundation for a precedent is undermined in that way, the precedent is no longer valid. If initial en banc review were granted, the Ninth Circuit could hold that High Tech Gays is overruled. However, the Ninth Circuit denied initial en banc review, and only agreed to expedite their review with the three-judge panel. Oral arguments before the Ninth Circuit were set for September 10.

Then, as noted above, the Justice Department petitioned the Supreme Court for certiorari in both Gill and Golinski. The petition in Gill is fairly standard since that case was decided by the appeals court and ready for review. But the petition for certiorari before judgment (at the appeals court) in Golinski, while used less often, is not exceedingly rare. The Court will occasionally grant review before the appeals court renders a judgment in cases of national importance. As I wrote at the time discussing the DOJ’s petition, after a discussion with Lambda Legal’s (representing Karen Golinski) legal director Jon Davidson:

The appeals court denied initial en banc review, but granted the request for the expedited schedule and set oral argument for the week of September 10. From there, briefs were filed on both sides, with amicus curiae (“friend of the court”) briefs on behalf of the Bipartisan Legal Advisory Group (BLAG), who is defending the law on behalf of House Republicans due by June 11. Amicus briefs on behalf of the plaintiffs (same-sex couples) are due by July 10.

Then, unexpectedly last night, the Justice Department sent a letter to the Ninth Circuit informing them that it was seeking a writ of certiorari to the Supreme Court, bypassing review of the law by the appeals court. Attached to the letter was the petition for certiorari itself. The most significant thing about this move is that while sometimes the Supreme Court is asked to review a case before an appeals court judgment is entered (called “certiorari before judgment” or “cert before judgment”) it is rarely granted, and only in instances where the issue to be resolved in the case is considered highly important. For example, cert before judgment was granted in US v. Nixon, the case involving the papers and tapes of President Richard Nixon. It was granted as well in Ex parte Quirin, a national security case involving military commissions. Certiorari before judgment was granted as late as 2005, in United States v. Booker. It is seen as a highly unusual move, though arguably a federal law that immediately impacts hundreds of thousands of same-sex couples in several different court circuits could potentially qualify as of national importance. As Jon Davidson, Lambda Legal‘s national legal director (and one of the counsel for Golinski tells me, “Federal statutory provisions expressly allow any party to a case pending before a court of appeals to ask the Supreme Court to grant review before oral argument or decision by the intermediate appellate court.”

Normally, oral argument at the Ninth Circuit would have been held even with the pending cert petition (especially here, where oral argument was expected to be held on September 10 but the Supreme Court would not even have a conference until September 24) but in this case, the Ninth Circuit canceled its scheduled oral argument and held the case until the Supreme Court decides whether to take it. Then, Lambda Legal filed its reply brief, agreeing that the Court should hear the case. Since both the DOJ and Lambda Legal want the Court to take the case, all eyes were on BLAG to see how they would respond to the DOJ petition. BLAG then asked the Supreme Court for a short delay so it can have more time to file a reply. (This is fairly common and delays are routinely granted.) Once BLAG files its reply, the Court will be able to decide whether to hear the case.

Two notes about Golinski: Justice Kagan did not participate in the case at any stage, so she would be able to take part in reviewing the challenge; also, since Judge White applied heightened scrutiny to strike down Section 3, if the Court takes Golinski they would be faced with reviewing an opinion that puts another option before them in terms of the level of scrutiny.

Windsor v. USA

Edith Windsor is an 83 year old widow living in New York. She married her partner of over 40 years in 2007 in Canada, and then her partner passed away in 2009 from multiple sclerosis. Since Windsor married a woman and not a man, when her wife died after a long illness, she was left with a $363,000 tax bill because of DOMA, essentially a tax for being a legally married lesbian. The ACLU and NYCLU filed a challenge to Section 3 of DOMA with Windsor as their client.

Of note in this case, BLAG filed a brief suggesting that Edith Windsor’s sexual orientation is a “choice.” Windsor filed an affidavit combating that suggestion.

On June 6, the district court struck down Section 3 of DOMA as unconstitutional under equal protection principles of the Fifth Amendment. This court struck down the law using standard rational basis review. Judge Barbara Jones wrote that she did not need to address the level of scrutiny, because the case simply “may be disposed of under a rational basis review.” Two days later, BLAG appealed the case to the Second Circuit Court of Appeals. The Justice Department filed its appeal as well. (The Justice Department and BLAG are fighting over the right to appeal in several DOMA challenges: the DOJ says BLAG doesn’t have standing to appeal, and BLAG says the DOJ’s appeals are “superfluous” because BLAG’s appeal is all that is required.) BLAG moved to dismiss DOJ’s appeal.

Then Windsor broke with the current trajectory of these cases and filed a petition for a writ of certiorari to the Supreme Court herself, before judgment or even oral argument at the Second Circuit, and before the Justice Department filed any petition. She asked the Court to review her case, and at the same time suggested that her case would present the Court with an opportunity to strike down Section 3 of DOMA simply using rational basis review. The Justice Department and some LGBT organizations have been pushing hard for the Court to apply heightened scrutiny, so this is somewhat of a different legal strategy the ACLU and NYCLU are taking. BLAG asked for and received an extension of time to file a reply to Windsor’s petition. Once the Court holds its conference they will decide which of these DOMA challenges, if any, they will take up.

While Windsor awaits possible Supreme Court review, it’s still on appeal to the Second Circuit, and oral arguments will be held on September 27 in New York.

Perry v. Brown (or, Hollingsworth v. Perry) the Prop 8 case

The Ninth Circuit Court of Appeals declined to rehear the case en banc on June 5 after it struck down Proposition 8 and that set the case up for review by the Supreme Court. When en banc review was denied, the proponents of Proposition 8 said they would be filing a petition for a writ of certiorari to the Supreme Court, and on July 31, they did. The Olson/Boies team fighting Prop 8 in court have said they will oppose Supreme Court review of the case, since their clients won at the Ninth Circuit. A reply to the petition is expected from them soon, and since they’ve already said it will be in opposition to review, we know what to expect from them. We don’t yet know whether the Supreme Court will review the case (and we are not likely to find out until October.) Proposition 8 isn’t a federal law that was struck down, and the case was resolved on exceedingly narrow grounds specific to the state of California and maybe to one or two other states. It is of course possible that four Justices will want to review a decision striking down an amendment to California’s state constitution on narrow grounds, but we can’t know until after their conference.

There are more filings expected in nearly all of these pending cases. I’ll be covering each one as they’re announced, and when the Supreme Court decides which cases to review, we’ll have it at Prop 8 Trial Tracker.

The next post in this series will focus on DOMA and marriage equality challenges in the district and appeals courts.

Scottie Thomaston is a Contributor at Courage Campaign Institute’s Prop8TrialTracker.com, where he writes about various legal issues impacting the LGBT community.

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