Everybody knows this one is headed for the nation's highest court.
And in yet another legal step, expected to expedite the U.S. Supreme Court's consideration of the Defense of Marriage Act (DOMA), Massachusetts Attorney General Martha Coakley has asked the court to uphold the decision by the 1st U.S. Circuit Court of Appeals striking down DOMA as unconstitutional.
In seeking review, the attorney general's brief states the "question" of the federal law's constitutionality "is one of national importance" and "should be conclusively settled."
According to the brief, the case should be taken now because "this Court is likely to review it in the near future, if only to ensure uniformity in the enforcement or non-enforcement of DOMA throughout the country."
The lawsuit in question is Massachusetts v. Department of Health and Human Services, currently in the 1st Circuit, where a three-member panel of judges unanimously upheld a lower court ruling, which found Section 3 of DOMA to be unconstitutional.
Section 3 defines "marriage," for the purposes of the federal government, as "a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is husband and wife."
The effect of Section 3 is to deny same-sex couples, married in the states that issue marriage licenses to them, more than 1,000 benefits, rights, and responsibilities afforded at the federal level, including Social Security survivor benefits and the right to file joint tax returns.
Both the attorney general and Gay & Lesbian Advocates & Defenders (GLAD) filed separate suits that so far have won at both district and appeals court levels. GLAD's suit is Gill v. Office of Personnel Management.
In both cases, the 1st Circuit court said the ban on federal recognition of same-sex marriages violates the Constitution's guarantee of equal protection.
However, the 1st Circuit did not agree with the state that DOMA violates the state's 10th Amendment right to retain powers that are not "expressly delegated to the United States."
And the 1st Circuit did not find persuasive the state's contention that DOMA violates the Spending Clause of the federal Constitution because it "conditions federal funds on the Commonwealth's violation of ... equal protection" rights of same-sex couples.
GLAD did not issue a press statement in response to the state attorney general's request for expedited Supreme Court consideration, but the organization's senior staff attorney Vicki Henry said over the telephone, "It's another necessary step in the process," adding, "We are expecting to file our responses [in support of the appeals court decision] by Aug. 2."
"We think this case really shows how hard-working people are really affected by DOMA," she told The Boston Globe. "We hope the harm of DOMA will be stopped."
"The Defense of Marriage Act is a discriminatory and unconstitutional law that harms thousands of families in Massachusetts and takes away our state's right to extend marriage equality to all couples," said Coakley in a statement.
"It is our firm conviction that in order to truly achieve marriage equality, all couples must enjoy the same rights and protections under both state and federal law. If the Supreme Court chooses to examine this case, we will look forward to once again making clear that DOMA and its perverse discrimination is unconstitutional and should be ended," she added.
Filed July 24, the state attorney general's brief comes on the heels of the U.S. Justice Department's petition earlier this month, asking the high court to review another legal challenge to DOMA's constitutionality.
That suit is Golinski v. Office of Personnel Management, a San Francisco case that is currently before the 9th U.S. Circuit Court of Appeals.
In a recent development, oral arguments in Golinski, which had been scheduled for the week of Sept. 10, have been canceled pending Supreme Court action, according to a July 27 blog posting on Prop8TrialTracker.com .
Earlier this year in a win for gay rights, the U.S. District Court in San Francisco ruled Feb. 22 that Section 3 of DOMA is unconstitutional, finding that the 1996 law "violates [the plaintiff's] right to equal protection."
In his opinion, Judge Jeffrey White found that Section 3 could not pass either the "rational basis" or "heightened scrutiny" test. The latter is the more rigorous legal analysis.
The case dates from 2008, when lesbian attorney Karen Golinski, then a 19-year employee of the 9th Circuit Court, applied for health care benefits for her wife. Citing DOMA, the U.S. Office of Personnel Management denied her application. The office administers the court's employee-benefits system.
When the case eventually reached him, White dismissed the suit on procedural grounds, but invited Golinski to amend her January 2010 complaint to challenge DOMA Section 3's constitutionality. She did so on April 14 of that year.
Even before the District Court ruling, U.S. Attorney General Eric Holder announced Feb. 23, 2011, that the Justice Department would no longer defend DOMA, but would continue to enforce it.
Lambda Legal Defense and Education Fund brought the Golinski case. And in response to the Justice Department's request for Supreme Court review, Lambda Legal staff attorney Tara Borelli issued a statement.
"This development highlights the desire by all, the government included, to resolve this issue quickly," she said. "DOMA's days are numbered."
Meanwhile, the Republican-controlled U.S. House of Representatives, through its Bipartisan Legal Advisory Group (BLAG), hired an attorney to defend the law in court.
On June 29, BLAG asked the Supreme Court to review the Massachusetts cases.
If the Supreme Court takes up either matter (Golinski or the consolidated Massachusetts cases) or both of them in its October conference, oral arguments could take place this fall or winter. Right now the court is in summer recess.
In its filings, the Justice Department said it is seeking Supreme Court review so that the constitutional "question "may be settled authoritatively."
The department and Lambda Legal argue that heightened scrutiny, a more rigorous analysis, applies because, as the department explains in its filings, "the denial of federal benefits to same-sex couples who are legally married under their state's laws bears no substantial relationship to any important governmental purpose that motivated Section 3's enactment."
The Justice Department also points to Section 3's failure even by the lesser legal standard of rational basis "because Section 3 is not rationally related to any conceivable legitimate interest of the federal government."
In its ruling, the 1st Circuit found Section 3 of DOMA unconstitutional under the rational-basis standard, which necessarily means it also fails heightened scrutiny.
Altogether, the Justice Department argues, "This case squarely raises important questions about the Constitution's equal protection guarantee as it applies to a federal distinction among persons who are legally married under their state's laws on the basis of sexual orientation."
In another DOMA development during the week of July 16, the American Civil Liberties Union, asked the Supreme Court to consider the case of Windsor v. United States, an appellate case pending in the 2nd U.S. Circuit Court of Appeals.
There, in New York, a U.S. District Court also found Section 3 of DOMA unconstitutional, ruling on rational-basis review that it violated plaintiff (and widow) Edith Windsor's equal protection rights. The court ordered her to receive a tax refund of more than $350,000, money she had paid on her inheritance from her late spouse. If federal law had recognized the marriage between her and the late Thea Spyer, Windsor would have paid no tax.
During the week of July 9, in still another DOMA-related development, 132 House members filed a friend-of-the-court brief in the Golinski case. The brief argues that heightened scrutiny applies insofar as gay men and lesbians as a minority group lack sufficient political power to gain favorable treatment by lawmakers.
Additionally, the brief states that gay men and lesbians are, historically, a disfavored minority. Consequently, they are often targeted legislatively on the basis of stereotypes and bias. Therefore, laws like DOMA, singling out gay men and lesbians for harm, warrant judicial skepticism and more rigorous legal analysis and review, according to the brief.
House Minority Leader Nancy Pelosi (D-Calif.), Rep. Jerrold Nadler (D-N.Y.), Minority Whip Steny Hoyer (D-Md.) and Assistant Minority Leader James E. Clyburn (D-S.C.), among others, took the lead in filing the brief, which highlights that House members are not of one mind on DOMA's constitutionality.
Joining House leadership in signing onto the brief are openly gay Democratic Representatives Barney Frank (Mass.), Tammy Baldwin (Wis.), Jared Polis (Colo.) and David Cicilline (R.I.).
In more recent news, Blesch v. Holder—a lawsuit challenging Section 3 of DOMA as it applies to binational couples and immigration—is on hold now, pending resolution of the 2nd Circuit's Windsor case, according to Prop8trialtracker.com . The advocacy organization Immigration Equality filed Blesch in the U.S. District Court in Brooklyn.
©Copyright. Chuck Colbert. All rights reserved
With editing by William B. Kelley
