Tuesday, July 17, 2012
There are now three petitions for certiorari before the United States Supreme Court seeking review of decisions that have declared DOMA's section 3 unconstitutional.
Passed in 1996, DOMA has come under increasing pressure regarding its constitutionality. Recall that the Obama Administration is no longer defending the constitutionality of DOMA; it is being defended by the BLAG, the Bipartisan Leadership Advisory Group, closely associated with Speaker of the House John Boehner.
The DOJ filed two petitions in the Supreme Court earlier this month.
The first petition for writ of certiorari is for review of the First Circuit opinion in the consolidated cases of HHS v. Massachusetts and Office of Personnel Management v. Gill, decided in April. A unanimous panel found section 3 unconstitutional, relying upon Moreno, Cleburne, and Romer v. Evans, each of which "rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered," to ultimately employ a heightened rational basis of equal protection review. The panel deployed federalism concerns in assessing the equal protection query, but stopped short of ruling that DOMA was inconsistent with the Tenth Amendment.
The other petition for writ of certiorari is for review of a federal district judge's decision in Golinski v. United States Office of Personnel Management. Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities, but the case is only now before the Ninth Circuit. The Solicitor General's petition makes clear that Golinski should be before the Court for the same reasons as Gill, and argues that the Ninth Circuit should be bypassed because "the lower court in this case engaged in de novo consideration of the applicable level of scrutiny, having concluded that it was not bound by circuit precedent applying rational basis review to sexual orientation classifications. The district court’s analysis may materially assist this Court’s consideration of that question."
Additionally, Edie Windsor has filed a petition for writ of certiorari seeking review of a federal judge's decision in early June in Windsor v. US that DOMA section 3 is unconstitutional. Windsor, represented by the ACLU, makes similar arguments to those of the Solicitor General regarding the national importance of resolving DOMA's constitutionality. She also note that the lower courts are "in disarray" and that the issue is especially important in New York, which has legalized same-sex marriage. However, Ms. Windsor also makes a personal argument:
Ms. Windsor is 83 years old and suffers from a serious heart condition. Because the District Court’s ruling is entitled to an automatic stay of enforcement, see 28 U.S.C. § 2414, Ms. Windsor cannot receive the benefit of its ruling in her favor as the executor of Ms. Spyer’s estate pending appeal and any subsequent challenges. Ms. Windsor, not Ms. Windsor’s estate, should receive the benefit to which the District Court has already ruled that she is entitled; the constitutional injury that has been inflicted on Ms. Windsor, as the executor of Ms. Spyer’s estate and its sole beneficiary, should be remedied within her lifetime.
Petition at 21.
Given that several courts have found DOMA section 3 unconstitutional, it seems likely that the Court will grant one - - - or more than one - - - of these petitions.