It's been an exciting couple of weeks. Proposition 8 was held to be unconstitutional by the Ninth Circuit Court of Appeals. The Washington State legislature passed a marriage equality bill, signed by Governor Gregoire. The New Jersey legislature followed suit (only to have the bill vetoed by Governor Christie), while the Maryland House of Delegates found just enough votes to get its version of marriage equality legislation through and on to the Maryland Senate. It is expected to pass without much fuss and be signed by Governor O'Malley.
But now the fireworks have all but stopped. Sure, the New Hampshire legislature may yet vote to repeal same-sex marriage. (They've been threatening to take that vote since early January but somehow haven't found the time in light of polling showing absolutely massive opposition, and an apparent lack of enough votes bigots to override a certain veto by Governor Lynch). But beyond that, very little of note is likely to happen on the marriage equality front until North Carolina holds its odious referendum on May 8th, 2012. Except...
DOMA!
DOMA, the Defense of Marriage Act, is undergoing court challenges across the country, and decisions could come down at any time. As soon as tomrrow. It's true that waiting for court decisions is like watching the Grand Canyon erode, but when it's the only game in town...
The good news for DOMA watchers is that just as Judge Walker's proclamation that Proposition 8 was unconstitutional was a major breakthrough, we could soon have a similar ruling or two at the same District Court level, this time stating that DOMA is unconstitutional.
The first such decision was handed down a year and a half ago by District Judge Joseph Tauro in the Massachusetts DOMA cases. But Massachusetts is in the First Circuit Court of Appeals, which some believe has previously held (in Cook v. Gates) that equal protection arguments based on sexual orientation are not subject to heightened scrutiny. The cases in which decisions are expected soon are in other circuits, where either no such ruling has been handed down (The 2nd Circuit) or there are serious questions as to whether such a ruling still applies (the 9th Circuit, regarding High Tech Gays). That may make success more likely when the case appeals reach those Circuit Courts.
The bad news is that regardless of whether favorable rulings come down, DOMA will still be the law of the land for some time. It looks to me like it is still going to take a couple of years before one of these cases (or perhaps a consolidation of a number of them) reaches SCOTUS.
Here's a quick review of where the more notable DOMA cases stand, courtesy of data put together by Kathleen Perrin, a frequent contributor to the Prop 8 Trial Tracker website. She is in the process of creating her own website to track all these cases, Equality Case Files. It isn't online yet, but she has graciously allowed me to quote from the summaries that she has prepared for the cases.
As you will see, a number of decisions are imminent.
Karen Golinski v. United States Office of Personnel Management, et al.
Golinski has sued the Federal Government for health insurance benefits for her same-sex spouse. This court proceeding is taking place in California, in the jurisdiction of the Ninth Circuit Court of Appeals.
There are currently four motions pending before the court: Golinski's motion for summary judgment, the DOJ's motion to dismiss, BLAG's motion to dismiss, and BLAG's motion to strike as evidence certain materials attached to one of Golinski's filings. Following a December 16, 2011, hearing (transcript here), all motions are fully briefed and argued and a decision is pending.
The last bit is the crucial part: a decision is pending, and it's been two months since the hearing. The Judge has repeatedly used language in his instructions and questions that some say indicates that a favorable ruling (against the constitutionality of DOMA) is likely.
Edith S. Windsor v. United States of America
Windsor has sued the United States for relief against paying inheritance taxes on her same-sex spouse's estate. This court proceeding is taking place in New York, in the jurisdiction of the Second Circuit Court of Appeals.
Pending before the court are Plaintiff's motion for summary judgment, and motions to dismiss by BLAG and DOJ*.
Motions are fully briefed and waiting decisions by the court.
The last documents in the case were filed in late October; again, a decision could come down at any time.
Joanne Pedersen et al v. Office of Personnel Management et al
Pedersen et al, have filed suit to receive recognition of their marital status for the purpose of receiving various federal benefits. This case is also being held in the jurisdiction of the Second Circuit.
Currently pending before the Court are (1) BLAG Motion to Dismiss, DOJ* Motion to Dismiss, and (3) Plaintiff Motion for Summary Judgment.
All motions are fully briefed and a decision is expected in February 2012.
The last documents were filed in mid-October.
Any or all of the above cases could see a decision tomorrow or next week. Or not, there's no way of telling.
What about the appeal of Judge Tauro's decisions?
Massachusetts DOMA cases
These include Gill v. OPM, Massachusetts v. OPM, and Hara v. OPM, now consolidated before the First Circuit Court of Appeals.
On July 8, 2010, Judge Tauro issued his decision in both Gill and Massachusetts, declaring DOMA Section 3 unconstitutional and granting summary judgment for plaintiffs... Judge Tauro ruled that the court lacked jurisdiction over Dean Hara's claim, pending final answer to a legal question pending in another court.
These decisions are currently being appealed in the First Circuit Court of Appeals... The three appeals cases have been consolidated for purposes of briefing and oral arguments.
All appeals cases are fully briefed and oral arguments are expected in April 2012.
There are a few other cases which are not so far along, including
Shannon L. McLaughlin, et al. v. Leon Panetta, et al., which seeks to give same-sex married couples in the armed forces equal rights and benefits as heterosexual couples. This case is
On hold until April 28, 2012, following approval of the parties’ joint motion for a 60 day stay in the case.
There is also
Dragovich v. Department of the Treasury, in which California same-sex couples seek equal access to California's long-term care insurance program for public employees and their families. A hearing on Motions for Summary Judgement
is scheduled for April 26th.
Last, but far from least, we have this touching video of Don Quixote a brave servicemember attempting to talk to Speaker Boehner to ask him and his BLAG to stop defending DOMA in Federal court. You may want a tissue handy.
It will be big news when these DOMA decisions are handed down. As for the dragon, it's still snarling, but I think we've got it cornered.