This week the Justice Department filed two petitions for writs of certiorari to the Supreme Court in challenges to Section 3 of the Defense of Marriage Act (DOMA). We covered the news as it broke, and below is analysis of the petitions.
Golinski v. Office of Personnel Management
In the first challenge, Golinski v. Office of Personnel Management (brought by Lambda Legal), a district court in California struck down Section 3 of the Act as unconstitutional. The Justice Department then asked the Ninth Circuit Court of Appeals to do one of two things: 1) hear the case initially with an en banc panel (eleven Ninth Circuit judges instead of a three-judge panel), or 2) proceed with a three-judge panel but put the case on an expedited schedule so briefing and argument would be completed faster. The appeals court denied initial en banc review but granted the request for the expedited schedule and set oral argument for the week of Sept. 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), which 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 this week, 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 U.S. 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."
Another important consideration is that in Golinski, Judge White at the district court held that Section 3 of the Defense of Marriage Act is unconstitutional, but he applied heightened scrutiny to strike down the law. All other district courts (and the appeals court) have held it unconstitutional under a form of rational basis review. Heightened scrutiny refers to how intently a law and its effects are reviewed by judges. Typically, laws have to pass rational basis review, which essentially requires that the law be "rationally related" to a legitimate government interest. Most laws easily survive this deferential form of review, because it is easy to come up with a reason most laws exist and to tie the law to a legitimate government interest.
But in February 2011 the Justice Department decided that it would no longer defend Section 3 of DOMA (the only section at issue in any challenge so far) because the Department concluded that laws affecting gays and lesbians should undergo a more heightened form of review like the type of review afforded to laws affecting women or racial minorities. Because gays and lesbians faced historical discrimination and still endure continued discrimination and are not politically powerful in a legal sense, and because being gay and lesbian is innate and does not impact one's contribution to society, laws classifying gays and lesbians should be viewed as "suspect," the Justice Department says. This heightened form of review is designed to protect "discrete and insular" minorities from attacks by legislatures.
Neither the Supreme Court nor the Ninth Circuit has ever held gays and lesbians to be a "suspect class," and in fact the Ninth Circuit has settled precedent leaning against that proposition. In High Tech Gays, the Ninth Circuit held that gays and lesbians were not a suspect class entitled to heightened scrutiny. This is why the Justice Department sought the initial en banc hearing at the Ninth Circuit (the en banc panel can overrule Ninth Circuit precedent on that point), and it is one of the reasons Supreme Court review of the case at this stage could change the legal landscape for gays and lesbians. If the Supreme Court holds that gays and lesbians are a suspect class, it effectively eliminates circuit precedent that has held otherwise. It would overrule High Tech Gays at the Ninth Circuit. It would also overrule Cook v. Gates, a First Circuit precedent that declined to extend suspect class status to gays and lesbians, leaving it up to the Supreme Court to clarify their intent.
Since the district court is the first to hold that laws affecting gays and lesbians warrant heightened scrutiny, putting Golinski in front of the Justices will place the suspect classification issue squarely before the highest court in the land. And Davidson notes that the fact that the Justice Department is raising this issue is important:
In general, the Supreme Court does consider carefully any arguments made by the Department of Justice. The Supreme Court is likely to consider a number of factors in deciding whether or not to grant the certiorari petition, and one certainly will be whether they would find it more helpful to review a case that carefully analyzed the considerations for deciding whether heightened judicial scrutiny should apply to government discrimination based on sexual orientation[.]
One last, important aspect of this move is that the Justice Department won its challenge below, since it took the position that gays and lesbians are a suspect class and laws affecting them warrant heightened scrutiny, and that Section 3 of the Defense of Marriage Act fails that scrutiny. Typically, the losing party is the party that appeals to a higher court or petitions the Supreme Court for review. The challenge thus presents interesting questions of Article III "standing," or the right of federal courts to even hear the case. Davidson tells me that Lambda Legal's position is that the Justice Department does have standing: "We believe the Department of Justice has standing to appeal, given prior precedent, as a law the Executive Branch still feels bound to enforce was held unconstitutional and its officials were ordered to not longer enforce that law."
Petitions for certiorari introduce and frame the case for the nine Justices. The Supreme Court has discretion (except in very few instances where mandatory review is required by law) to decide which cases it wants to review. Petitions for certiorari inform the Court about the legal issues involved in the case and tell the Justices if there are "circuit splits" where one court of appeals decided the issue one way but others took a different route. Circuit splits don't necessarily have to exist for the Supreme Court to hear a case, but for petitioners the fact that there is a divide does help the chances of review. Importantly, in its "Questions Presented," lawyers get a chance to ask the Court to hear certain specific issues. This offers an opportunity to either limit the issues before the Court or expand them. The Court doesn't have to hear or decide on all the questions presented before it, and sometimes they even add questions (though not too often).
In its petition for certiorari in Golinski, the Justice Department frames the Question Presented as: "Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State."
This is the only question presented before the Justices in this petition. After recounting the procedural aspects of the case, the Justice Department lays out the reasons the Supreme Court should review the challenge. The Justice Department says that Section 3 of DOMA "bears no substantial relationship to any important governmental objective," so it necessarily follows that it violates the Fifth Amendment's guarantee of equal protection under the law. Most courts, including the First Circuit Court of Appeals, have held that Section 3 of DOMA is not even "rationally related" to a legitimate government interest; for example, the purported interest of "child-rearing in the context of stable marriage" was held to be unrelated to the text of the statute itself, which does not address child-rearing. As the First Circuit wrote:
A second rationale of a pragmatic character, advanced by the Legal Group's [BLAG] brief and several others, is to support child-rearing in the context of stable marriage.
The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
But since the Justice Department is raising the issue of heightened scrutiny, laws affecting gays and lesbians as a class face an even more strict review, and so Section 3 of DOMA must have a substantial relationship to an important government objective under its theory. The Justice Department says it agrees with the district court's ruling in Golinski, but it "respectfully seek[s] this Court's review so that the question may be authoritatively decided by this Court."
"As the federal entities charged with Section 3's enforcement, and against whom judgment was entered below, petitioners are the proper parties to invoke this Court's power to review the court of appeals' judgment," the Justice Department writes, referencing its petition in the First Circuit's Gill v. OPM/Massachusetts v. HHS case. The Justice Department suggests that because federal courts have struck down an act of Congress, review is extremely important. Then, the Department tells the Court that these decisions holding that review under rational basis is required ignores jurisprudential advances: "[A]lthough every court of appeals to address the issue has concluded that classifications based on sexual orientation are subject to rational basis review, none has offered an explanation for that conclusion that withstands scrutiny under this Court's precedents."
Along with the importance of heightened scrutiny, which really took center stage in this filing, the Justice Department makes the point that while the Court only grants cert before judgment in important cases, this challenge indeed qualifies as nationally important. The takeaway is this sentence: "Section 3 applies to more than 1,000 federal statutes and programs whose administration depends in part on marital status." Section 3 of DOMA is effectively, according to the Justice Department, tied to 1,138 federal laws in a way that makes them operate to violate the equal protection of gays and lesbians in terms of denying legally married gay and lesbian couples the same federal benefits as legally married heterosexual couples.
Lambda Legal attorney Tara Borelli weighed in with a statement:
This development highlights the desire by all, the government included, to resolve this issue quickly. It is clear to us, to the Solicitor General and to the Department of Justice that DOMA's days are numbered. The last four courts to consider the question have all found Section 3 of DOMA -- which prohibits the federal government from recognizing same-sex couples' valid marriages -- to be unconstitutional. DoJ's action may speed the day when the Supreme Court reaches the issue. Lambda Legal and Morrison & Foerster stand ready to argue for fair treatment for Karen Golinski and her spouse, Amy Cunninghis, in any court, at any time -- and we welcome this opportunity to finally put DOMA out of its, and our, misery.
There are loving, married same-sex couples, and grieving lesbian and gay widows and widowers around the country who are being hurt by the government's discriminatory actions -- that's why there are DOMA cases pending in several jurisdictions, brought on behalf of many plaintiffs. Every one of their stories demonstrates that DOMA is an unfair and discriminatory law that violates the Constitution. While it is up to the Supreme Court to decide whether or not to hear Golinski now, we are confident that DOMA will be found unconstitutional -- and the sooner, the better.
Responses by the parties in the case -- BLAG and Lambda Legal -- are due within 30 days of the filing of the petition for certiorari. The Ninth Circuit oral arguments will still take place on the week of Sept. 10.
Gill v. Office of Personnel Management/Massachusetts v. Department of Health and Human Services
Unlike the Golinski case, the challenge, filed by Gay and Lesbian Advocates and Defenders (GLAD) against Section 3 of the Defense of Marriage Act in Gill/Massachusetts did reach the court of appeals, and judgment was entered at that level. The challenge was heard at the First Circuit Court of Appeals, and the three-judge panel struck down Section 3 of the Act as unconstitutional. That panel, featuring two Republican-appointed judges and one Democratic-appointed judge, held that DOMA violates equal-protection principles because the Supreme Court, in an important line of cases, has ruled that laws seemingly aimed at minority groups based on animus alone violate equal protection. Most recently, in terms of gay rights, in Romer v. Evans in 1996, the Supreme Court struck down an amendment to Colorado's constitution that stripped gays and lesbians of all their rights and protections by the state government. The Court found that the enactment of the amendment was only based on a dislike of gays and lesbians, and more is required to enact these sorts of laws under the constitution. Relying on this line of cases instead of ordinary rational basis review (which is very lenient), the First Circuit could not find any rational relationship between the law and its purported aims.
The First Circuit's decision is ready for review by the Supreme Court, and indeed the Bipartisan Legal Advisory Group (BLAG) petitioned the Court for certiorari itself last week.
Notably, the First Circuit has an existing precedent barring heightened scrutiny, as well. The First Circuit, however, did not apply heightened scrutiny the way the district court in Golinski had. The First Circuit case barring heightened scrutiny is Cook v. Gates. In that case the First Circuit held that none of the Supreme Court's prior precedents had suggested their willingness to afford gays and lesbians suspect class status under the equal protection clause. Lawrence v. Texas, they said, was a "substantive due process" case, with only one vote for striking down the sodomy law at issue under the Equal Protection Clause. Romer explicitly relied on rational basis review, said the panel. The First Circuit was not willing to disturb the holding in Cook v. Gates, but it noted that it was doing its best to apply precedent based on its reading, and if it read the cases incorrectly, the Supreme Court is free to fix it.
The First Circuit was the very first court of appeals to strike down Section 3 of the Defense of Marriage Act.
The petition for Certiorari from BLAG last week was in a lot of ways similar to the Justice Department's petition filed this week. The main difference is that BLAG suggested that the First Circuit may have "erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review." But while the First Circuit noted that it included "federalism concerns" within its review, the standard it actually used is fairly well-known and was not invented ad hoc in order to strike down Section 3.
The Gill petition has the same question presented as the Golinski petition: "Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State." The Justice Department is urging review in this case because the First Circuit invalidated an act of Congress and because the differing standard of review in the case warrants a decision by the Supreme Court. The petition cites a long list of cases for the proposition that even though the First Circuit is the only one to strike down Section 3 of DOMA, the Court should still review any federal law that has been invalidated. The petition then explains the process for applying heightened scrutiny:
Under this Court's precedents, general social and economic legislation is ordinarily presumed valid, even though it may draw distinctions between different classes of individuals. Cleburne, 473 U.S. at 440. The Court will thus generally uphold such legislation if "there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012) (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313(1993)).This Court has held that this deferential framework of review does not, however, apply to legislation that classifies on the basis of certain characteristics, including race, national origin, illegitimacy, and gender, that are deemed "suspect" or "quasi-suspect." "These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy--a view that those in the burdened class are not as worthy or deserving as others." Cleburne, 473 U.S. at440-441.
The law thus calls for more searching constitutional review of such classifications to determine whether they are adequately justified by legitimate state interests. Heightened scrutiny calls on courts to examine only the "actual [governmental] purposes" underlying such classifications rather than "rationalizations for actions in fact differently grounded," United States v. Virginia, 518 U.S. 515, 535-536 (1996), and to determine, at a minimum, whether the classification bears a substantial relationship to an important governmental objective, Clark v. Jeter , 486 U.S. 456, 461 (1988).
The petition suggests that gays and lesbians fit nicely into the group of suspect classifications.
The Justice Department points out that the First Circuit (along with at least four district courts) has noted that the purported aims of Section 3 don't match the text of Section 3. And they suggest that because the aims and the text are so far removed, that suggests animus is the true basis: "The mismatch between Section 3's stated ends and means raises an inference that Section 3 classifies gay and lesbian individuals "not to further a proper legislative end but to make them unequal to everyone else" (citing Romer v. Evans).
The Department notes that the cases that hold that laws impacting gays and lesbians are not entitled to heightened scrutiny are relying on a 1986 case, Bowers v. Hardwick, that was overruled in 2003 in Lawrence v. Texas (though Lawrence did not apply heightened scrutiny). Citing the Roberts Court's opinion in Christian Legal Society v. Martinez, among others, the Justice Department writes that "[s]ome courts of appeals also reasoned that gay and lesbian individuals differ from previously recognized suspect and quasi-suspect classes in that members of such classes, [e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature]" but that "[s]ubsequent decisions of this Court have undermined that reasoning" (such as the CLS case).
The petition closes by noting the public importance of this case and the fact that even the First Circuit acknowledged that the only proper resolution of the case would take place in front of the Supreme Court.
Gay and Lesbian Advocates and Defenders has released a statement on this development in its case:
DOJ Filing Today Follows Last Week's BLAG Move
Gay & Lesbian Advocates & Defenders (GLAD) will respond by August 2 to the petition filed last night by the Department of Justice for certiorari in the case Gill v. Office of Personnel Management, a challenge to the federal Defense of Marriage Act (DOMA). DOJ's filing comes on the heels of a petition for certiorari filed last week by the Bipartisan Legal Advisory Group (BLAG).
Mary L. Bonauto, GLAD's Civil Rights Project Director and co-lead attorney in Gill, said, "We are in this fight to strike down a blatantly discriminatory law that hurts our clients -- widowers, married couples with kids, elderly people -- and many others every day. To that end, we will add our voice and respond forcefully to BLAG's attempt to justify DOMA's discrimination."
The Gill petitions are in response to a unanimous May 31st ruling by the U.S. Court of Appeals for the First Circuit that Section 3 of DOMA is an unconstitutional denial of equal protection of the laws. The Gill plaintiffs are seven married same-sex couples and three widowers from Massachusetts, all of whom are represented by GLAD, based in Boston.
Today DOJ also petitioned for certiorari in a separate, unrelated DOMA challenge, Golinski v. OPM, which is now pending in the U.S. Court of Appeals for the Ninth Circuit.
These cases could be taken up in the Supreme Court's Sept. 24 conference, Davidson tells me; this is the earliest they would decide whether or not to hear the case, given that they are on summer vacation until then. From there, if they take the case, we could likely find out within that week. Arguments would be scheduled for around four months after the case is docketed. A decision would be rendered likely at the end of June 2013 at the latest.
Scottie Thomaston is a contributor at Courage Campaign Institute's Prop8TrialTracker.com, where this piece originally appeared.