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D-Day for DOMA Decision

Today is the legal deadline for the Justice Department to decide whether or not to appeal Federal District Court Judge Tauro's ruling in Massachusetts v. United States Department of Health and Human Services. Tauro ruled Section 3 of the Defense of Marriage Act (DOMA) unconstitutional.

DOMA Section 3:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only 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 a husband or a wife.

To not appeal would leave the Federal government in the philosophically and logistically awkward position of having to recognize same-sex marriages within the State of Massachusetts for the purposes of Federal law, while having to not recognize them outside of that jurisdiction. (Leaving open the question of what the Federal government would be required to do if a same-sex couple legally married in Massachusetts moved out of that state!).

What is it the government will almost certainly be appealing? The decision in part reads:

"It is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment."

Should it happen, the appeal will be to the 1st Circuit, which has jurisdiction over Federal cases in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico.  There are six judges sitting on the 1st Circuit; two were appointed by President Clinton and one each by Presidents Reagan, GHW Bush, GW Bush, and Obama.

(In a bizarre twist US Representative Lamar Smith (R-Texas), has petitioned the court to be allowed to conduct this appeal instead of having the Justice Department do it.  He contends that the government is not providing a full-throated defense. While his request has not yet been ruled on (presumably pending the Federal government's decision), it seems rather unlikely to non-legal-scholar me that anything this wacky would be allowed.)

In its sister case, Gill v. Office of Personnel Management, in which Judge Tauro also ruled DOMA, Section 3 unconstitutional, the government must decide by the 18th of October whether two appeal.  Many people assume that the government will announce its decision for both cases at the same time (that is, today), and that the two cases could be merged in hearings before the 1st Circuit.

The one estimate I've read of how long the case will take to be heard and decided on appeal is 'approximately a year'.  That would mean an appeal to the US Supreme Court would not likely be made until very late 2011 or early 2012, with the court not hearing the case until late 2012 and making a decision in 2013.

Could the government not appeal a loss in the 1st Circuit instead?  Were they to choose to do they they would be in the same awkward position as if they had not appealed the District Court's decision: recognition mandated in a small part of the United States with recognition prohibited everywhere else.

Given that there seems to be no possibility of DOMA being repealed by Congress in the foreseeable future, this likely represents the best path to marriage equality -- as slow as it must be and fraught with the possibility of an ultimately unfavorable ruling. (Another path is the Proposition 8 trial, Perry v Schwarzenegger, but that could easily never reach the Supreme Court for lack of standing issues or as other scenarios play out; and even if a favorable ruling was obtained, its scope could be quite limited).

There are at least two other important cases involving LGBT equality where developments are imminent:

In re: Gill was decided by a Florida Appeals Court some weeks ago, and the State of Florida has until October 22nd to decide whether to appeal to its Supreme Court.  Gill found that Florida's ban on homosexuals being adoptive parents was unconstitutional.

And in one of the more dramatic cases to date, Log Cabin Republicans v United States of America, Judge Philips ruled on Setpember 9, 2010, in striking terms, that Don't Ask, Don't Tell was unconstitutional

"Don't ask, don't tell's restrictions on speech not only are broader than reasonably necessary to protect the Government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals. For these reasons, Plaintiff is entitled to judgment on behalf of its members on its claim for violation of the First Amendment's guarantees of freedom of speech and petition.

Phillips found that the "sweeping reach" of the restrictions placed on the speech of LGBT military personnel by DADT is "far broader than is reasonably necessary to protect the substantial government interest at stake".

Phillips also found that DADT violates LGBT personnel's right of association, as it prohibits them from openly joining organizations like LRC for fear of reprisal, thereby depriving them of their ability to petition the government for redress of grievances.

Phillips further ruled that DADT violates the substantive due process  rights of LGBT personnel as it violates the fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.

The plaintiffs (Log Cabin Republicans) have asked for a global injunction, completely preventing the military from enforcing the policy.  The defendants (the Justice Department) have asked that the injunction to be issued apply only narrowly -- to those members of LCR named in the case.

It's been three weeks since the government submitted that proposal.  Judge Philips took about a month and a half to issue her original decision in the case, so an injunction order within the next couple of weeks would make sense.

Unlike the DOMA cases, there would be no jurisdictional or philosophical issues should the government choose not to appeal Judge Philips decision and injunction -- assuming the injunction applies nationally, as it can because the trial was argued as a facial challenge:

If a facial challenge is successful, a court will declare the statute in question facially invalid, which has the effect of striking it down entirely...

In First Amendment cases, another type of facial challenge is enunciated in the overbreadth doctrine. If a statute reaches to include substantial protected conduct and speech in relation to the legitimate reach of the statute, then it is overbroad and thus void on its face.

Just as a district Federal Judge was recently able to halt stem cell research nationwide via an injunction (until the Government appealed the ruling and got a stay from the Appeals Court), so too can Judge Philips order the entire US Military to stand down on DADT. But no one knows what the scope of her order will be.

Were the government not to appeal, that would simply be the end of DADT. No fuss, no muss. All discharge proceedings would simply cease, and no new discharge proceedings would begin. Will that happen? I wouldn't bet a dollar to win a $100 on such a proposition.  But it would sure make a nice pre-election encourage-the-base surprise.

======================================

I don't know when the Justice Department will announce it's decision today, but I will update this diary with the news if they do so before it scrolls off.

Update Well, it scrolled off, but I'll update anyway.  As expected, the DoJ appealed both DOMA cases.

Originally posted to jpmassar on Tue Oct 12, 2010 at 10:10 AM PDT.

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