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Cross-posted at Prop 8 Trial Tracker

Earlier this month, the Bipartisan Legal Advisory Group (BLAG) who is defending DOMA in court challenges, noted in a filing that they would be petitioning the Supreme Court for certiorari, or review, by the end of the month. Today BLAG filed its petition. A petition for certiorari is the first attempt to frame the issues the Supreme Court will decide. Petitions have a list of "Questions Presented" that the Supreme Court may or may not decide to hear. (The Supreme Court can also add its own question(s) and possibly ask for briefing on any additional issues.) The questions presented here are:

(1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and

(2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review

The "previously unknown" standard of review the petition cites refers to the First Circuit's rational basis review that included both a more searching form of review that regarded laws which might be based on animus toward a particular group as suspicious, as well as a stronger focus on DOMA's impact on federalism.

The petitioners ask the Court to take the case because:

As the First Circuit recognized, this case calls out for this Court’s review. The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the establishedworld of equal protection law that result should have been impossible.
The petition also suggests that the issue of separation of powers should lead the Court to grant cert:
Separation of powers considerations strongly counsel in favor of this Court’s review. The executive branch has not only abdicated its traditional role of defending the constitutionality of duly-enacted statutes, but has simultaneously announced that it will continue to enforce DOMA. App. 127a. As a result, the House has been forced into the position of defending numerous lawsuits challenging DOMA across the Nation. That is a role for which the Justice Department—not the House—is institutionally designed.

Only this Court can settle this matter definitively. Unless and until this Court decides thequestion, the executive branch will continue toattack DOMA in the courts, while continuing to enforce it, thus creating more potential litigation for the House to defend.

The petitioners once again invoke Baker v. Nelson, the 1972 case in which the Supreme Court summarily dismissed "for want of a substantial federal question" a challenge alleging that the Equal Protection Clause requires same-sex marriage. They claim that case conflicts with the First Circuit's overturning of DOMA.

A response to the petition by the respondents (the plaintiffs at the First Circuit) is due within 30 days.

GLAD (the attorneys for the plaintiffs) has issued a press release:

Congressional Leadership Seeks Supreme Court Review of GLAD’s DOMA Case

Gill Case Could be Decided in 2012-2013 SCOTUS Term

Congressional leadership in the form of the Bipartisan Legal Advisory Group (BLAG) today filed a petition for certiorari in the case Gill v. Office of Personnel Management, a challenge to the federal Defense of Marriage Act (DOMA).

The petition is in response to a unanimous May 31st ruling by the U.S. Court of Appeals for the First Circuit that Section 3 of DOMA is unconstitutional with respect to claims brought by seven married same-sex couples and three widowers from Massachusetts.  Gay & Lesbian Advocates & Defenders (GLAD) represents the plaintiffs.

Mary Bonauto, GLAD’s Civil Rights Project Director and lead attorney in the case, said, “We will look closely at the petition and will consider our options.  We remain convinced that our clients deserve to be treated equally under the law and have their marriages respected by their government.  Two federal courts have agreed with us so far.”

GLAD filed Gill v. Office of Personnel Management on March 3, 2009. Prior to the appellate court decision, U.S. District Court Judge Joseph L. Tauro found DOMA unconstitutional on July 8, 2010.

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.

Originally posted to Scottie Thomaston, formerly indiemcemopants on Fri Jun 29, 2012 at 04:00 PM PDT.

Also republished by Milk Men And Women, Angry Gays, and Kossacks for Marriage Equality.

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Comment Preferences

  •  I saw your post but I thought I'd jump in too (12+ / 0-)

    Hope you don't mind, Scottie. We knew it was coming but it's big news.

  •  This bit sounds fishy (3+ / 0-)
    The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny.
    It's not clear what case they're filing before the Court, but I'd be surprised if this assertion were strictly true in any of them.

    When Free Speech is outlawed, only outlaws will have Free Speech.

    by Dallasdoc on Fri Jun 29, 2012 at 04:10:22 PM PDT

    •  It's the First Circuit's (6+ / 0-)

      Gill/Massachusetts case(s). The opinion actually did acknowledge both of those things to be fair. But it said that ordinary rational basis review (the type used for economic legislation) is not correct for this type of case because the law impacts gays and lesbians, a group who typically have laws passed against them/us based solely on animus.

      I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
      @indiemcemopants on Twitter

      by Scottie Thomaston on Fri Jun 29, 2012 at 04:14:45 PM PDT

      [ Parent ]

      •  Yes, and... (4+ / 0-)

        ...it is flat-out incorrect to say that the 1st Circuit made up this "exacting" version of rational basis out of whole cloth.

        It did not -- it followed SCOTUS precedent in Romer v Evans and the Group Home case, which also used a more exacting and careful version of rational basis review.

        There are at least 5 votes on the Court to uphold that standard (Kennedy and the four more liberal justices). CJ Roberts is a bit of a wild card in this area -- he did pro bono work helping the 'good guys' in Romer, though he was playing the devil's advocate role and may in fact have been the devil he was pretending to be.

        (In the gender and race cases before the court so far, my general read is that Roberts has a distaste for any law that draws distinction based on those categories, whether the law purports to be on the side of angels or not. He is the embodiment of the old-school conservative "why can't we all just be colorblind" type.)

        Prediction:

        The Court will strike DOMA as improperly limiting the longstanding state prerogative to define marriage, without approaching the question of whether equal marriage is a federal right. If we're lucky, the Court will be more explicit in finding a higher level of scrutiny for LGBT issues and open the door a bit wider for Equal Protection arguments against state regulations and/or amendments that limit marriage.

        But what the Court will not do is find a federal right to equal marriage or otherwise intrude upon the ongoing state-level arguments. It will gracefully punt those issues for a later term (knowing full well it will have to address them eventually, and there is only one ruling that will look good in history books a half century from now).

        sin and love and fear are just sounds that people who never sinned nor loved nor feared have for what they never had and cannot have until they forget the words

        by harrije on Fri Jun 29, 2012 at 04:46:09 PM PDT

        [ Parent ]

        •  Well no one is even (6+ / 0-)

          asking the Court to find a federal right to marriage equality in this case. That's why the constant references to Baker are so bizarre. The plaintiffs expressly deny they are asking for a federal right to marry (since they're already married.)

          I do think they'd decide it based on equal protection principles rather than tenth amendment ones though, just because that argument seems extremely weak.

          I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
          @indiemcemopants on Twitter

          by Scottie Thomaston on Fri Jun 29, 2012 at 04:51:13 PM PDT

          [ Parent ]

          •  Say that over and over (6+ / 0-)

            There's a lot of confusion on that.

            But even the parties challlenging DOMA are not asking to find a fundamental right to same-sex marriage.

            They are only asking, that where same-sex marriage is recognized by a state (in this case Massachusetts) the Federal government must recognize it as well.

            This in no way empowers gays in Red States to ask their states to marry them.

            "When I think of all the harm the Bible has done, I despair of ever writing anything to equal it." ~ Oscar Wilde

            by Scott Wooledge on Fri Jun 29, 2012 at 06:00:47 PM PDT

            [ Parent ]

      •  Ultimately it seems to me (1+ / 0-)
        Recommended by:
        Scottie Thomaston

        What gets said or posited in these filings is not terribly important.

        Both parties in the suit are anxious to take it to the SCOTUS. They agree 100% on that.  

        When the SCOTUS agrees to take it, it's Etch-A-Sketch time and they can consider whatever they choose.

        The ultimate question before the court is DOMA comstitutionally defensible?

        Getting to "Yes" is a long slog for BLAG now.

        "When I think of all the harm the Bible has done, I despair of ever writing anything to equal it." ~ Oscar Wilde

        by Scott Wooledge on Fri Jun 29, 2012 at 05:55:40 PM PDT

        [ Parent ]

        •  But the framing counts. (0+ / 0-)

          I mean in the health care case the challengers presented the law as an unprecedented overreach that would fundamentally change the relationship between the government and the people.

          And Justice Kennedy said that exact thing.

          So I think how all this is framed at the outset is important.

          I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
          @indiemcemopants on Twitter

          by Scottie Thomaston on Fri Jun 29, 2012 at 06:01:32 PM PDT

          [ Parent ]

    •  Well, it is pretty much true. (2+ / 0-)
      Recommended by:
      Scottie Thomaston, Dallasdoc

      At least as far as I understand how the 1st Circuit ruled.

  •  Somebody was rushing when they wrote this one. (2+ / 0-)
    Recommended by:
    Scottie Thomaston, opinionated

    In addition to what Dallasdoc wrote, with which I agree.

    They seem to have at least one additional question which the current diary says they wrote in, which is whether the executive branch can be required not only to implement DOMA, or some other questionable statute, but also whether they may be required to defend it in court.

    I wonder if they would have filed this in this way if they had written it after yesterday.

    Ah well, at least it's going to be decided soon, since IIRC, a refusal of cert means the First Circuit is upheld and DOMA is toast. That should draw out a truly epic Scalia performance.

    •  I don't see that as an actual "question to be... (2+ / 0-)

      ...decided." It's more on the lines of sour grapes trotted out in the body of the brief. There is no question that the Administration cannot be compelled to defend any statute it does not wish to defend. There is a procedure in place for such an eventuality; I don't recall whether or it is statutory or part of the Constitution but in any case it's there in writing and Holder was following established, written procedure when he notified the House and Senate that his office would no longer defend DOMA.

  •  What about going after DOMA on federalist (3+ / 0-)

    grounds?  Federal marriage benefits go to couples in states where marriage equality or civil unions have been enacted?

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Fri Jun 29, 2012 at 04:18:19 PM PDT

    •  They did in this case. (1+ / 0-)
      Recommended by:
      zenbassoon

      Massachusetts' arguments were based on Tenth Amendment grounds. However the First Circuit completely rejected them (but also said that since the issue does implicate federalism concerns, they should review it carefully.)

      I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
      @indiemcemopants on Twitter

      by Scottie Thomaston on Fri Jun 29, 2012 at 04:20:09 PM PDT

      [ Parent ]

  •  Will this pave the way (1+ / 0-)
    Recommended by:
    Scottie Thomaston

    for a suspect class ruling?

    Education is a progressive discovery of our own ignorance.

    by Horace Boothroyd III on Fri Jun 29, 2012 at 04:24:19 PM PDT

    •  I would imagine (3+ / 0-)
      Recommended by:
      Horace Boothroyd III, skip945, sfbob

      it would come up in briefing and such. The First Circuit opinion sidestepped the issue but the Supreme Court can do whatever it wants.

      I can't really predict what might happen with the suspect classification issue unfortunately. This Supreme Court is weird. And after yesterday when Kennedy went full-on conservative, saying we should burn down the whole ACA, who can tell?

      I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
      @indiemcemopants on Twitter

      by Scottie Thomaston on Fri Jun 29, 2012 at 04:28:50 PM PDT

      [ Parent ]

    •  An interesting question (6+ / 0-)

      It's quite obvious to me that gays and lesbians (and bisexuals and the transgendered) meet the definition of a suspect class. But that doesn't mean the court will see things that way. We can pretty much guarantee that Thomas and Scalia will do and say anything to avoid making such a determination...regardless of little their views comport with the facts. But as to the other Justices I really don't can't say for sure. I think we can count on Sotomayor and Ginsberg. As for the rest...well...who knows? I'm not even certain we can rely entirely on Kagan.

    •  Of important note (3+ / 0-)

      While the DOJ is not defending DOMA in this case, it is very, very often the case that in matters where the US is not directly a party, the Court will ask the Solicitor General to weigh in on the questions in the case.

      So we can look forward to the DOJ position being filed through the Solicitor General's brief. If the DOJ continues to hold that heightened scrutiny should apply, then that position will make it into the case record.

      sin and love and fear are just sounds that people who never sinned nor loved nor feared have for what they never had and cannot have until they forget the words

      by harrije on Fri Jun 29, 2012 at 05:01:11 PM PDT

      [ Parent ]

      •  I will be very interested (3+ / 0-)
        Recommended by:
        harrije, Scott Wooledge, sfbob

        to see what the Government says on that issue. When they first decided to stop defending DOMA, it was very specific: they decided Section 3 should be reviewed under heightened scrutiny because gays and lesbians fit the four criteria for that, and that the law fails heightened scrutiny but passes rational basis.

        But at the First Circuit, they admitted that they were not in court to defend the law on any basis. It will be interesting to see if they start suggesting it just fails under rational basis so they don't need to reach the level of scrutiny issue, or if they push for it.

        I am proud to be a Contributor at Courage Campaign Institute's Prop8TrialTracker.com
        @indiemcemopants on Twitter

        by Scottie Thomaston on Fri Jun 29, 2012 at 05:06:50 PM PDT

        [ Parent ]

        •  It's probably allowed to have it both ways (5+ / 0-)

          "We argue that heightened scrutiny applies {DOJ boilerplate}.

          "In the alternative, we argue that DOMA fails an exacting rational basis review for the reasons set forth in the 1st Circuit opinion."

          It would be similar to the Commerce Clause vs. Taxing Power arguments in PPACA, both of which were proposed by the Government in briefings and argument.

          sin and love and fear are just sounds that people who never sinned nor loved nor feared have for what they never had and cannot have until they forget the words

          by harrije on Fri Jun 29, 2012 at 05:14:16 PM PDT

          [ Parent ]

  •  I don't worry much about SCOTUS passing (3+ / 0-)
    Recommended by:
    Scottie Thomaston, sfbob, skrekk

    Both parties want it at the SCOTUS.

    Leaving the Appeals judgement to stand would wipe out DOMA in the First while it stands in others.

    I would almost expect, if possible the DOJ/Solicitor General to recommend the case to the SC given how onerous it would be to enforce/not enforce DOMA based on the geography of the citizen. 

    Leaving the Appeal's judgment to stand, without review, could open the floodgates to LGBT couples moving to the First Circuit to avail themselves of Federal Benefits.

    Most especially binational couples who would almost certainly be eligible for martial immigration green card applications.  

    "When I think of all the harm the Bible has done, I despair of ever writing anything to equal it." ~ Oscar Wilde

    by Scott Wooledge on Fri Jun 29, 2012 at 06:10:53 PM PDT

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