Posted on November 1, 2012 at 3:55 pm by Lyle Denniston
The Republicans leaders of the House of Representatives urged the Supreme Court on Thursday to select their plea as the right one for review of the constitutionality of the federal Defense of Marriage Act, but shifted position a bit to suggest an alternative if the Court prefers. In a new brief reacting to the sweeping new decision by the Second Circuit Court, and responding to an Obama Administration request last week that the Court take on that specific case, the GOP members of the House Bipartisan Legal Advisory Group argued that the Court should focus on a case that is simple and raises the issues clearly without procedural complications.
The Second Circuit decision, which went further than any other federal appeals court decision has gone on gay rights under the Constitution, makes the need for the Justices to take on the constitutionality of DOMA “overwhelming,” even though it was already “strong,” the Republican leaders said. Even so, they disagreed with the Administration view that the Second Circuit’s Windsor v. United States case is the best one for testing DOMA’s ban on marital benefits to same-sex couples who are legally married under their own states’ laws. The Court would have to go through procedural “machinations” to tee up that case, the GOP brief contended. The House GOP is defending DOMA in the wake of the Administration decision last year to abandon that defense.
Even so, if the Court does not grant the Republicans’ petition, which the brief argued is still the “decidedly superior vehicle,” the GOP leaders contended that the next best petition is one that it had opposed earlier. That was filed by the Administration, asking the Court to review a decision by a federal district judge in San Francisco striking down the DOMA ban (Office of Personnel Management v. Golinski, docket 12-16). The government petition in that case asked the Court to take on that case without waiting for it to be reviewed in the Ninth Circuit Court. In that case, U.S. District Judge Jeffrey S. White decided the DOMA case using the same constitutional standard that the Second Circuit had.
Although the GOP brief did not mention it, one of the reasons why the Court might want to choose a case other than the one filed directly by the Republican leaders is that Justice Elena Kagan very likely would have to recuse herself from that case, which comes from the First Circuit Court and was developing in lower courts when Kagan was U.S. Solicitor General and seems to have had some role in it.
The Court now has eight pending petitions dealing with the controversy over DOMA, as well as two other petitions dealing with the same-sex marriage in other legal settings. The Court has scheduled all ten for initial examination at its Conference set for November 20. Unless the Court were to grant all ten, it will have to make a selection, and that is the task on which the Administration and the House GOP leaders have now taken conflicting positions.
The dispute between them is somewhat arcane, having to do with the procedural norms that the Court follows. The Administration has not seen those as a barrier to review of any of the four petitions it has filed, but the House GOP has been arguing that all of the petitions except its own are fraught with procedural flaws or other factors that would distract the Justices’ attention from the core issue of DOMA’s validity. The Administration has lately focused on having the Court review the Second Circuit ruling in Windsor, after first arguing that the case there might not be a proper one. The House has steadfastly contended that its petition is clearly the best, and has resisted all of the others. It has now altered its view enough to suggest that the Golinski case would be acceptable instead of the Windsor case.
The Windsor case involves Edith Windsor of New York, who is the surviving spouse of a lesbian marriage that was performed in Canada, before New York officially accepted same-sex marriages. Because of DOMA, Mrs. Windsor had to pay a tax on the estate she received from her spouse that she otherwise would not have had to pay. The Second Circuit ruled that this denial deprived her of equal treatment under the Constitution. It did so by applying a constitutional test that is technically called “heightened scrutiny.” That is a fairly rigorous test that makes it harder for laws that allegedly discriminate to be upheld. No other federal appeals court has used that tougher test in a gay rights case.
The Golinski case involves Karen Golinski, a staff lawyer for the federal courts in San Francisco, who was married to her same-sex partner during the brief interval when California allowed such marriages (permission that was taken away in 2008 when the state’s voters approved a ban in “Proposition 8″). Ms. Golinski sought to include her spouse, Amy Cunninghis, in her federal family health insurance plan, but that was denied because of DOMA. District Judge White also applied “heightened scrutiny” is ruling that Ms. Golinski’s rights to equal treatment were denied.
In the new brief filed with the Justices on Thursday, the House GOP leaders leveled a broad attack on the Second Circuit’s decision on October 18 in the Windsor case. The Second Circuit, the brief said, “has now opened an express conflict with eleven other circuits as to the proper standard for reviewing sexual-orientation classifications.” The GOP leaders also noted that the dissenting judge in the Circuit Court had said that the standard used by the majority there would now be used to strike down state laws across the country that restrict marriage to opposite-sex couples.
“The Second Circuit’s decision,” the GOP brief said, “confirms beyond all doubt that this Court should review DOMA’s constitutionality, with the only disputed question being the proper vehicle (or vehicles) for this Court’s review.”
In addition to the Administration petition asking the Court to focus on the Windsor case, Mrs. Windsor herself has filed a petition (12-63) seeking review by the Justices.
If the Court were to take on that case, the House GOP contended on Thursday, it would have to deal with side issues before it could reach the constitutionality of DOMA’s ban. Whether Mrs. Windsor has “standing” to bring her case at all, the new brief said, is crucial to whether her case should have been allowed, and that depends upon an issue of New York state law: would her Canadian marriage have been accepted by New York? That issue, the brief said, is not free from doubt because New York’s own highest court has refused to settle it and the Second Circuit declined to ask the state court to do so.
The House also said there is a question about whether the Supreme Court is free to simply bypass that state-law issue even though it is “decisive” as to Mrs. Windsor’s right to challenge DOMA, and therefore whether the Court has jurisdiction to hear the case.
Further complications with that case, according to the GOP brief, are whether the Justice Department and Ms. Windsor have any right to be appealing, because they won in lower courts, and whether the Justice Department should be allowed to treat its existing petition in Windsor (12-307) as the proper vehicle in which to explore the subsequent ruling by the Second Circuit on the merits. In addition, the House GOP repeated an argument that, since the Administration has abandoned the defense of DOMA, it is uncertain whether it may seek Supreme Court review at all in cases where its current view prevailed.
All of those “vehicle difficulties” with the Windsor case, the new brief asserted, make it clear that the Court should accept the House GOP’s petition as the right vehicle, since it has none of those complexities and goes straight to the constitutionality of DOMA.
Still, in a final concluding paragraph, the GOP brief said that “if for some reason this Court is disinclined” to grant the House GOP petition, it suggested that the government’s petition in the Golinski case be chosen as “the best of the remaining vehicles.” There is no issue of “standing’ in that case, it said. And, it added, even though that petition, too, involves the question of whether the government can properly pursue an appeal when it won in the lower court, that may not be a controlling consideration. Thus, it summed up, “Golinski provides this Court with the best opportunity to focus on the critical issue that all agree merits this Court’s review — DOMA’s constitutionality.”