The Obama Administration on Friday urged the Supreme Court to hear and decide the most sweeping federal appeals court decision ever issued on gay rights, as the government’s preferred case for reviewing the constitutionality of the federal Defense of Marriage Act.  Solicitor General Donald B. Verrilli, Jr., in a new brief, said the Second Circuit Court case of Windsor v. United States is “the most appropriate vehicle” for review of DOMA’s ban on federal benefits for legally married same-sex couples.

In technical terms, Verrilli asked the Court to go ahead and grant a petition the government had already filed in that case (United States v. Windsor, docket 12-307), and simply add to the file in that case the Second Circuit decision issued last Thursday.  The Circuit Court’s ruling was attached as an appendix to the new brief.  If the Court takes that advice, it would not slow the processing of the eight DOMA petitions that are now awaiting the Justices’ attention.  It has been expected that the Justices would examine those together next month, perhaps at its November 20 Conference.

The government filing sets up a potential conflict in advice to the Court, since the House GOP leadership — defending DOMA’s constitutionality now that the Administration has stopped doing so — has been urging the Justices to grant review only of a case from the First Circuit, and to do so only for a petition filed by the GOP lawmakers (Bipartisan Legal Advisory Group of the House v. Gill, docket 12-13).   The GOP leaders’ lawyer, Washington attorney Paul D. Clement, told the Court last week that he would be filing a new brief in the wake of the Second Circuit ruling in the Windsor case.  (That filing is expected soon, and the blog will cover it when filed.)

The Solicitor General conceded that the Gill case also involves a ruling by a federal appeals court, thus offering the Court a chance to hear a DOMA case that had been through that level of review.  But, in Gill, the Solicitor General said, the First Circuit was not free because of binding circuit precedent to consider anew what constitutional standard to use in judging the validity of the DOMA ban.  By contrast, the Second Circuit had no prior precedent on the point, the brief noted.  In fact, the Second Circuit in the Windsor case adopted the most demanding standard any federal appeals court had yet chosen for judging a law that allegedly discriminated against gays and lesbians.  That standard is “heightened scrutiny,” which is not the toughest constitutional test but is more rigorous than the “rational basis” standard that other appeals courts have used in gay rights cases.  The House GOP leaders argued that DOMA should be judged by the “rational basis” test.

The Administration has taken the position in the DOMA cases, since giving up the defense of that law, that allowing federal benefits only for opposite-sex married couples should be judged by “heightened scrutiny.”  So far, before the Second Circuit ruling last week, only one federal district judge has applied that test in striking down DOMA.   The Administration has also put that case before the Court, in a plea for direct review without waiting for the Ninth Circuit Court to rule on that case (Office of Personnel Management v. Golinski, Supreme Court docket 12-16).

One reason why the Supreme Court might select the Windsor case for review over the Gill case is that Justice Elena Kagan is expected to disqualify herself from taking part in any action on the Gill case, because she apparently had something to do with it when she was U.S. Solicitor General.   The Windsor case developed after she had left that office and became a Justice.

But lawyers for the House GOP leaders have been arguing, in their filings in the Supreme Court, that the Windsor case has procedural problems, because there is a question about whether the woman involved — Mrs. Edith Windsor — had a right to file a petition with the Justices because she had won in a lower court and there is a question whether she was legally married and thus in a position to qualify for federal marriage benefits were it not for DOMA.   She and her now-deceased spouse were married in Canada before New York’s legislature allowed same-sex marriages.

The House GOP leaders also question whether the federal government should be allowed to pursue appeals, partly because its position that DOMA is unconstitutional has now prevailed in all of the cases for which Supreme Court review is now being sought, and partly because the government last year abandoned its prior defense of DOMA.

In addition, the GOP lawmakers argued that the Supreme Court seldom brings up a case from a district court for review when the normal course would be to get a decision from a federal Circuit Court before asking the Justices to step in.

In the Solicitor General’s new brief filed Friday, he argued that the Second Circuit decision last week in the Windsor case “materially strengthens this case as a vehicle for resolving” DOMA’s constitutionality.  In fact, General Verrilli argued, the Circuit Court answered all of the objections that the House GOP leaders have to that case as a proper one for Supreme Court review.

The ruling, Verrilli noted, came from a Circuit Court so that objection is gone.  Second, the Circuit Court, whose word on New York state law can be trusted, according to the Solicitor General, has concluded that Mrs. Windsor’s marriage would have been recognized in that state even though performed in Canada.  And, third, Verrilli argued, the Second Circuit reinforced the government’s contention that it is the proper entity to be pursuing Supreme Court review when a lower court has struck down an act of Congress.

All that is needed to grant Supreme Court review of the government petition in the New York case is to add the final ruling by the Second Circuit to the file, and then it will be ready for the Justices’ consideration in that final form from the appeals court, Verrilli asserted.

Specifically at issue in the DOMA challenges is its Section 3.   That provision, applying to more than 1,000 federal provisions, declared that any time the word “marriage” appears in any federal law, it is meant to apply only to a marriage of a man and a woman.   DOMA was passed by Congress in 1996, partly in reaction to fears among lawmakers that the states would begin to endorse same-sex marriage, after Hawaiian courts seemed to be moving in that direction.

Posted in Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill, Office of Personnel Management v. Golinski, U.S. v. Windsor, Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, U.S. picks a DOMA case, SCOTUSblog (Oct. 26, 2012, 1:44 PM), http://www.scotusblog.com/2012/10/u-s-picks-a-doma-case/